The Supreme Court’s Ballroom Non-Decision

Can the courts block a “Ballroom, one with Bomb Shelters, a State of the Art Hospital and Medical Facilities, Protective Partitioning, Top Secret Military Installations, Structures, and Equipment, Protective Missile Resistant Steel, Columns, Roofs, and Beams, Drone Proof Ceilings and Roofs, Military Grade Venting, and Bullet, Ballistic, and Blast Proof Glass” based on the aesthetic harm it could cause to an architectural history professor who appreciates the “stately simplicity” of the existing White House complex?

Convoluted as the question may sound, it’s the primary basis on which the Supreme Court has seemingly decided the fate of President Trump’s most controversial D.C. building project in National Trust for Historic Preservation v. National Park Service. Aesthetic standing was determinative in this week’s 5-4 ruling to stay an injunction against the above-ground construction of the president’s treasured ballroom cum military complex—and Trump himself seemed to have anticipated as much. After all, his Truth Social posts evinced an all-caps interest in the subject.

“The person who filed the meritless and lawless suit on the desperately needed White House Ballroom, being built as a GIFT to America (without Tax Dollars!), a woman walking her dog, has absolutely NO STANDING to bring such a monumentally important case against our Country,” he wrote at one crucial juncture in the litigation. Trump was referring to Alison Hoagland—the member of the National Trust for Historic Preservation on whom the organization’s complaint relied. District Court Judge Richard Leon’s decision to enjoin the construction, he wrote at another, “doesn’t even discuss the vital subject of STANDING, of which the plaintiff has none.” And when the D.C. Circuit affirmed that injunction, he announced that the appeals court panel was “totally wrong” on—you guessed it—“STANDING.”

Trump was, if the Supreme Court is now to be believed, totally right. Yet the Court’s decision will likely strike some observers as almost certainly misplaced. Dismissing a case based on standing is theoretically what courts do to avoid deciding a case that the Constitution doesn’t authorize them to. But the Supreme Court’s refusal to decide this case is a decision, and the same one the executive had already made when it unilaterally obliterated the East Wing with a backhoe: that the ballroom will be built whether it’s lawful or not. And, though the ruling does make clear a ballroom will rise from the dust left by the destruction of the East Wing, it adds no clarity at all to standing doctrine. Instead, it only casts further confusion on an already muddy matter.

The Vital Subject of STANDING

Standing is technically rooted in the limitations the Cases or Controversies Clause of Article III of the Constitution imposes on the judiciary to hear only real disputes between affected parties. A cynic, however, might say that standing is actually rooted in whether a given judge wants to decide a given issue at a given time.

According to the latter view, standing is hardest to come by when a court would rather avoid addressing a case’s merits—perhaps because it’s politically controversial, because they’re reluctant to create precedent, or because a substantive ruling likely wouldn’t yield their preferred outcome. One imagines that an effort by the president of the United States to erect an enormous entertainment complex on the White House grounds based on the claim that it is essential to his safety and security might be an example of such a matter.

So perhaps it’s unsurprising that the Supreme Court’s majority this week declined to weigh in on the likely—or unlikely—lawfulness of the ballroom-building. Instead, the justices devoted the bulk of their analysis to the plaintiff’s purported lack of Article III standing. (Bowing low in national security deference to the executive, they dedicated the remainder of their attention to the irreparable harm the government has insisted it would suffer from being temporarily disallowed to put a dance palace atop the gaping hole it has blown in the ground.) The minority, meanwhile, had plenty to say about the illegality of the project.

In any event, regardless of whether it’s applied in good faith, modern-day standing doctrine revolves around a three-part test: A plaintiff must have suffered a concrete, particularized and imminent “injury in fact”; the injury must be traceable to the action under challenge; and the injury must be redressable by the court’s decision.

Justice Antonin Scalia articulated these criteria in 1992 in Lujan v. Defenders of Wildlife. This was, incidentally, an aesthetic standing case, but earlier rulings in non-aesthetic cases had previewed the analysis extensively. The court had also been clear about what did not constitute standing. For instance, Valley Forge Christian College v. Americans United for Separation of Church & State, a 1982 ruling that any adverse “psychological consequence presumably produced by observation of conduct with which one disagrees” is not cognizable, has been a favorite of the government’s in the ballroom case: The idea being that Alison Hoagland, the “woman walking her dog,” has merely had her feelings hurt by the objectionable “architectural message” she believes a hulking ballroom where once was a humble East Wing will send.

The concept of “generalized grievances,” early versions of which appeared in Fairchild v. Hughes in 1922 and Frothingham v. Mellon in 1923 also runs throughout this jurisprudential line: An injury shouldn’t be “shared with millions,” or “essentially a matter of public and not of individual concern.” More recently, the Supreme Court has also shown interest in tightening the injury-in-fact criteria: Spokeo, Inc. v. Robbins (2016) and TransUnion LLC v. Ramirez (2021), for instance, raised the bars for particularization and concreteness—though on aesthetic standing the contemporary Court had, until Monday, neglected to speak.

A Woman Walking Her Dog

No previous cases present a perfect point of comparison to a historic preservationist who is injured when the president reinvents an icon of American civic culture by replacing it with a building three times as large, which is slated (for some reason) to include Indiana limestone carved in Italy and whose entire roof is supposedly going to be a “DronePort.”

But many cases at least come close. Aesthetic standing has long offered plaintiffs a way to sue for harms that aren’t obviously tangible, as physical damage or economic loss are. The Supreme Court in Sierra Club v. Morton ruled against the Sierra Club, but in doing so it established that aesthetic and environmental interests, “important ingredients of the quality of life of our society,” are cognizable—so long as the plaintiffs are “among the injured.” The trouble was that the suing members of the organization didn’t actually use the valley in the Sequoia National Forest that they said was about to be despoiled by a ski area.

This wasn’t satisfactory to Justice William O. Douglas, who wrote in his dissent that standing would be “simplified and also put neatly in focus if we fashioned a federal rule that allowed environment issues to be litigated…in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers, and where injury is the subject of public outrage.” Unfortunately for the could-have-been litigants in Former East Wing Site v. Trump, he did not prevail upon his colleagues.

While subsequent cases reinforced the validity of aesthetic and environmental standing, they also stressed the need for specificity in plaintiffs' claims: use of land “in the vicinity” of an area affected by a challenged activity wasn’t enough, and neither were “some day” intentions to visit such a place. “Anyone who goes to see Asian elephants in the Bronx Zoo…has standing to sue” over a U.S.-funded project “in Sri Lanka,” Justice Scalia wrote in Lujan. “This is beyond all reason.” But, and this, for ballroom-related purposes, is an all-important but: “Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest.”

All in all, the message was clear: Aesthetic harms count for standing, but a plaintiff must establish an injury specific to his or her human self. Harm to an elephant, or a tree, or a treasured piece of national history doesn’t count on its own. It is clear, then, that a middle-aged guy in Columbus who would really like to take a look at the White House in his lifetime can’t sue over the 90,000 feet of gold-accented and Corinthian-colonnaded that will soon abut the residential manse. But could a woman who walks her dog regularly through Lafayette Park while contemplating Pierre L’Enfant’s plan for Washington, D.C., as part of her profession as an architectural historian?

In Friends of the Earth v. Laidlaw, the majority asserted that proving harm to the environment isn’t actually necessary at all, so long as there’s harm to a plaintiff for whom an area’s value “will be lessened by the challenged activity.” The plaintiffs in that case hadn’t demonstrated that mercury discharges would harm the environment or their health, but they had demonstrated they would avoid recreating in a river because of their “reasonable concerns” about those discharges’ impact. And that was enough to give them standing. One might think this would suggest that the lessened recreational and professional value of the ballroom and its surroundings to Ms. Hoagland (of dog-walking and architectural history-studying fame) would therefore also suffice.

In Summers v. Earth Island Institute (2009), the court wrote that a statistical probability of harm to a suing organization’s members wasn’t enough for standing. Nonetheless, in doing so the court emphasized that repeated past visits and plans to return would meet the bar. So a woman who has walked her dog past a site many times, and intends to continue walking her dog there semi-regularly, would seem to—apologies—stand a good chance.

Not Just Any Building, Not Just Any Person

So how does the Supreme Court unlash itself from the mast of recognizing aesthetic harms? The answer: not very persuasively.

Admittedly, the high court had previously focused on aesthetic harms in the context of the environment—not in the context of historical sites. But lower courts, including the D.C. Circuit, had reasonably read those rulings to apply also to historic and cultural interests: holding in Sierra Club v. Jewell (2014), for instance, that “Coalition members who view and enjoy the Battlefield’s aesthetic features, or who observe it for purposes of studying and appreciating its history, would suffer a concrete and particularized injury from the conduct of surface mining” there. Similarly, in Narragansett Indian Tribal Historic Preservation Office v. FERC, a D.C. Circuit panel ruled that harm to tribal heritage caused by “the destruction of…ceremonial landscapes certainly qualifies as an injury in fact.” And the Supreme Court’s majority in the ballroom ruling doesn’t bother to explain why historic and cultural harms are distinct from environmental ones.

Also admittedly, the Supreme Court’s position on aesthetic standing doctrine has seemed in tension with its stance toward psychological and emotional harms—as long ago as Valley Forge, and as recently as FDA v. Alliance for Hippocratic Medicine, in which the justices were prodded to address the mismatch but declined. There might well have been ways to draw distinctions between Hoagland’s claims and those of previous plaintiffs that would have made hers seem more like an emotional harm and less like a concrete aesthetic injury: arguing, for example, that an aesthetic injury must implicate some real-world asset of which a plaintiff makes or plans to make imminent use, or that a challenged activity must foreclose or meaningfully curtail this use. But the majority wasn’t interested in making this jurisprudential effort.

Instead, the justices simply declared that the National Trust’s objections to the ballroom fall in the insufficient category of (reaching back to Valley Forge) “psychological consequence presumably produced by observation of conduct with which one disagrees”—rather than the sufficient category of aesthetic harm. Why? Well, according to the Court, “mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.” How is this different from the environmental cases? Those involved “more than mere offense,” the majority says, rendering them concrete and particularized. What more? Duh—injuries stemming from causes other than “offense, disagreement, or distaste.”

This remarkable bit of circular reasoning reduces to every parent’s favorite logical fallacy: Because I said so.

The majority makes no effort actually to examine what constitutes concreteness, or what constitutes particularization, or how Hoagland fails either standard. Indeed, it bats away Chief Justice Roberts’s attempt to do just that, saying that the dissent’s argument that Hoagland is “not simply some taxpayer who fancies the thought of the traditional White House unadorned by a ballroom” but a person with “focused and substantiated” expertise in historic architecture is irrelevant, because “our standing rules…contain no such special carveout.” But the concept of a “special carveout”—particularization, by any other name—is precisely what the standing rules rest on.

The dissent does address concreteness and particularization directly: citing “the distinctive nature of the White House” as “an iconic American building whose symbolism and history are wrapped up in its architecture” along with Hoagland’s individualized “commitment to the preservation of such historic American buildings” and regular visits to “the White House to take in the historic building’s beauty and to appreciate its symbolism.”

And it identifies the majority’s failure to differentiate between this case and the environmental cases. Now, Chief Justice Roberts writes “‘I want to look at a crocodile’ can adequately answer the ever critical ‘what’s it to you?’ question of Article III standing, while ‘I want to look at the White House’ cannot—no matter how distinctive the particular viewer’s interest in looking at it may be.” He asks why, “if a standalone concrete and particularized aesthetic injury can be recast as mere offense,” environmental plaintiffs’ aesthetic injuries are saved “from being classed as mere distaste for the actions of government or private industry?”

Good question. The majority’s inability to answer, as law professor Will Baude points out, could mean that aesthetic standing is on its way out entirely, including as regards environmental matters. Or it could mean that aesthetic standing has been cabined to environmental matters only, reserved for natural resources, and that the theories of historic and cultural harms lower courts have recognized are kaput. Or it could mean that five justices just really didn’t want to reach the merits in this case, so they came up with an excuse not to, and they’ll deploy the same reasoning when convenient while discarding it when it’s not.

If the last is what happens, the manner in which this case obfuscates rather than clarifies standing doctrine may be a boon for the bench rather than a burden: adding an opaque additional layer of complexity that allows the justices even more wiggle room to rule on the merits of cases where they like, and not rule where they don’t.

And if instead the ruling does augur a new era for aesthetic standing—one in which it is either eliminated altogether or limited to environmental harms—the outcome is just as alarming. “Today’s decision is no victory for the separation of powers,” Chief Justice Roberts says in the dissent. His point is that the Court’s purported respect for the limitations on the judicial branch has allowed the executive to usurp the legislature’s constitutional prerogatives. That’s right. But the decision may also damage the separation of powers by overly curtailing the authority of the judiciary. The standing doctrine is supposed to limit the judiciary to its proper sphere by ensuring that not just anybody can sue. But by applying its test in such a restrictive manner, the Supreme Court risks turning standing into an instrument that guarantees in a wide range of cases that nobody can sue.

In any event, even if somebody besides Hoagland could sue in this instance—if Congress, as some have proposed, could assert standing and after a midterms victory actually decided to do—any ruling on the merits would likely come too late. By then, “the magnificent Ballroom and Military Complex” would probably already be, well, standing.