On Monday, the Supreme Court told Donald Trump he can proceed full steam ahead to construct his monstrous ballroom. That’s not because the project is lawful: the per curiam, 5-4 order on the shadow docket expressly offered no opinion on the merits. Indeed, every court to consider the question—plus four dissenting justices on the high court—has concluded that the project is likely unlawful. It’s also a vile and fairly hideous affront to the most visible symbol of our democracy.
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. The per curiam order represents the shadow docket at its most pernicious: a loosey-goosey decision based on the procedural particulars of granting an emergency stay that has the possible effect of letting Trump get away with a national atrocity.
I’m about to sketch out the legal flaws in the per curiam opinion, but for the ballroom, it’s always important to keep the overall stakes in mind and the gravity of the Court’s legal mishmash. The White House is the people’s house, an architectural triumph that communicates our rejection of imperial rule and embrace of democracy. Trump’s undemocratic vision is to build a monument to himself, a swollen reflection of his hopelessly grandiose self-image. It’s a frontal attack on our own sense of the country that couldn’t happen in a well-functioning democracy.
To sue in federal court, you need standing, and the bedrock of standing is injury—something “concrete and particularized” that is “actual or imminent.” The typical injury is financial or physical, but the Court has long recognized the possibility of aesthetic injury, particularly in environmental cases. So, for example, in Lujan v. Defenders of Wildlife, the Court held that the “desire to observe an animal species, even for purely esthetic purposes” is “undeniably a cognizable interest for purpose of standing.”
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 species, or public building with sustained passion and intensity, and its loss takes something valuable from us, whether or not it costs us money. That was the basis for standing in the ballroom lawsuit, and it’s difficult to see how it could be more concrete.
The National Trust for Historic Preservation brought the lawsuit. To sue as an organization, it had to put forward one member with standing in her own right. And in this case that was Alison Hoagland. Hoagland is not, as Trump sneered, some lady who happens to walk by. She is a professor of history and historic preservation, an authority on American architecture, and a Washington resident who goes to look at the White House because looking at it is, for her, the whole point.
The five-justice per curiam, or unsigned, opinion did not purport to overrule the cases that say so. Rather, it pooh-poohed and trivialized 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.”
The Court carved off the environmental precedents on the ground that those plaintiffs did “more than” look: they fished, they swam, they hiked. In his dissent for four justices, Chief Justice John Roberts fairly demolished that argument, pointing out that the principal way anyone enjoys a historic building is precisely by looking at it, and that the Court had misconceived Hoagland’s injury.
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” (one of the Nile species at issue in Lujan) 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.
To grant the stay, the Supreme Court also needed to find that the administration would be irreparably injured if the stay weren’t granted. They really made hash of this critical factor.
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—the injunction is harmful for the simple circular reason that it frustrates the executive’s efforts, which of course is a given. That sloppy account of irreparable harm has become a routine move for the conservative supermajority.
The Court also credited an argument from the administration that the ballroom’s “height and mass” are “crucial” to shield the underground installation from “kinetic impacts,” lest engineers “dig impractically deep.”
But this second theory, apart from being a kind of bureaucratic gibberish, 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. The security the administration now says requires the full Trumpian plan was never at risk.
In fact, the actual irreparable harm is plainly on the plaintiffs’ side of the ledger. Stop the work and the executive’s pet project merely pauses. Let it proceed, and the crews return to 20-hour days, racing to build the project up to a point where it may be impossible to undo. That is irreparable harm in its plainest sense.
With the per curiam 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. The three of them obviously judged that the most powerful punch available was to let the Chief speak for all four, even though it wasn’t enough.
Roberts’s opinion begins with the straight declaration that the ballroom is likely unlawful, in effect a raw power grab. Congress has expressly forbidden any building on federal park grounds in the District of Columbia without its direct authorization, which it hasn’t given. The two statutes the government waves around—a couple million dollars appropriated for ordinary maintenance of the Executive Residence, and a general instruction to the Park Service to conserve historic objects—come nowhere near authorizing the president to raze the East Wing and put up a private ballroom with hundreds of millions in outside money.
Roberts concludes with the true stakes of the dispute, 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: “[w]e shape our buildings, and afterwards our buildings shape us.” All the more reason, the Chief adds, to make sure those responsible follow the rules in deciding what to tear down and what to build up at the People’s House.
That’s the real tragedy of the case, the point that eclipses standing doctrine and irreparable harm. Every court to consider the ballroom’s legality has found it likely unlawful. Four justices now say the same, and not one justice has written a word defending it. The five in the majority say only that they “do not pass upon” it, but that’s cold comfort when their ruling means that the unlawful project now resumes at deliberate breakneck speed.
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 would be 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. We shape our buildings, and afterwards our buildings shape us—so ask how this one, if it rises, shapes us. The shape, plainly, is not as citizens of a republic, but subjects in a toadying autocracy where the maximum leader gets his maximum ballroom as his maximum tribute.
Only a consummate and abject failure of the entire 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.
Talk to you later.
Are the names of any Injustices in The Epstein Files?
Turn it into a visitors center where the evils of Trumpism and other authoritarian regimes are on full display as public warnings.