Rather, the court held that the stay on construction should be lifted because the plaintiffs lacked standing and the order was irreparably harming the administration. Both aspects of the decision were flawed.
There’s an ethereal quality to aesthetic injury, but that doesn’t make it vaporous. We can appreciate a landscape, or work of art, or historical battlefield, or public building with sustained passion and intensity, and its loss takes something valuable from us, whether it costs us money or not. That was the basis for standing in the ballroom lawsuit, and it’s difficult to see how it could be more concrete.
The five-justice per curiam, or unsigned, opinion, did not purport to overrule the cases that say so. Rather, it pooh-poohed Hoagland’s felt harm, recasting her documented, decades-deep professional interest as “mere offense,” no different, in the majority’s telling, from “virtually every citizen” who wants “to challenge virtually every government action that they do not like.”
What the majority actually did by way of determining that the administration was likely to prevail on the merits was narrow aesthetic standing to the vanishing point. As of now, “I want to look at a crocodile” passes muster while “I want to look at the White House” does not. And since it’s hard to think of any prospective challenger to the ballroom who would not be relying on aesthetic injury, there is no clear path around the Court’s tacit reframing of the doctrine.
The court’s first recognition of irreparable harm was the mere fact that the executive will was frustrated. That is blatant bootstrapping that just restates the court’s legal judgment, but it’s a move that has become routine for the conservative supermajority.
But this second theory was a mid-litigation invention. Roberts’s dissent guts it in a single devastating footnote. It points out that the government had earlier told the district court the opposite—that its below-ground security work was driven by concerns having nothing to do with the ballroom above it. And the injunction never touched that work: It barred only the ballroom, leaving the government free to build the underground facility and whatever was needed to protect it.
With the majority ducking the merits, Roberts’s dissent went to the heart of the case. Not surprisingly, Justices Sotomayor, Kagan, and Jackson joined without a word of their own, because the chief’s voice packed the most powerful punch.
He concludes with the true stakes of the disputes, and the enormous social injury of the court’s casual dismissal on standing grounds. “The White House,” he writes, “is not just any building, and…Hoagland is not just any person.” And he saves the perfect quote from Winston Churchill for his final paragraph: “We shape our buildings, and afterwards our buildings shape us.”
It’s not simply the illegality. It’s vastly unpopular with the American people, the actual owners of the “people’s house.” It would destroy the neoclassical serenity of the most important public building in America. And it’s hideous.
The White House’s serene neoclassical design is the shape of democracy; Trump would convert it to a bloated monument to his own megalomania. Only a consummate and abject failure of all of government—a corrupt president, a pliable and quiescent Congress, and a cynical Supreme Court refusing to confront the real stakes of the case—could even make it possible. But that’s precisely what is now staring us in the face.
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