In a genuinely surprising decision, the Supreme Court has dismissed a lawsuit against President Donald Trump\u2019s congressionally unauthorized ballroom construction project. Over a dissent by Chief Justice John Roberts, who was joined by the court\u2019s three liberals, the court\u2019s five conservatives said that the National Trust for Historic Preservation lacked standing to challenge the ballroom being built where the East Wing of the White House used to be.<\/p>\n
The unsigned opinion raises an obvious question \u2014 if the National Trust for Historic Preservation can\u2019t challenge the destruction of a historic building, who can? \u2014 and a less obvious one: How is the White House like a crocodile?<\/p>\n
I\u2019m not being facetious \u2014 Roberts actually does raise that second question. And the consequences of the first go beyond the narrow issue of who has the legal authority to challenge Trump\u2019s architectural imperialism. More than any other Supreme Court decision in recent memory, this one narrows the grounds for federal lawsuits by watchdog groups. It\u2019s so extreme, it goes much further to deny standing than even the late Justice Antonin Scalia did.<\/p>\n
The leading precedent in the area is Scalia\u2019s opinion for the court in the 1992 case of Lujan v. Defenders of Wildlife. The basic idea of standing is that the federal courts only rule when there is a live \u201ccase or controversy\u201d under the Constitution. Scalia wrote that this requires \u201can injury in fact,\u201d which in turn requires \u201cconcrete, particularized harm\u201d to the party bringing the lawsuit.<\/p>\n
The Lujan case involved a challenge to an EPA regulation that limited the consultation government agencies were required to do under the Endangered Species Act to when they took action in the U.S. The challengers argued that the statute should apply to projects the U.S. funded abroad which potentially harmed endangered species \u2014 such as the Nile crocodile.<\/p>\n
Scalia\u2019s opinion held that the environmental groups lacked standing because their injury was not concrete and particularized enough. In the course of explaining what would have qualified, though, Scalia wrote that a \u201cdesire to \u2026 observe an animal species\u201d such as a particular crocodile, \u201ceven for purely esthetic purposes,\u201d was \u201cundeniably a cognizable interest for purpose of standing.\u201d In a 2009 case, the court reaffirmed that statement, noting injury to a plaintiff\u2019s \u201cmere esthetic interests\u201d could count as \u201cconcrete and particularized.\u201d<\/p>\n
As Roberts observes in his dissent, if \u201can environmentalist can sustain a concrete, particularized aesthetic injury from the extinction of a particular animal or the transformation of a particular forest or river that he regularly enjoys,\u201d then a preservationist \u201ccan be aesthetically injured in a concrete, particularized way by the transformation of a historic building that she frequently enjoys.\u201d<\/p>\n
The majority dismissed this idea, interpreting the Lujan precedent to mean that the observers\u2019 aesthetic reaction did not count as concrete and particularized but should be understood as mere \u201cdistress at or disagreement with\u201d the government\u2019s actions. To hear the majority tell it, if mere aesthetic objections were sufficient to bring a lawsuit, anyone could bring a lawsuit against the government any time for anything that the plaintiff disagreed with.<\/p>\n
The vote that surprises me most in this case is that of Justice Amy Coney Barrett, who clerked for Scalia and ordinarily takes pains to make sure the court interprets his views correctly.<\/p>\n
It\u2019s certainly true that if you read Scalia\u2019s opinion in its entirety, his statement about the cognizability of aesthetic injury is what is known as \u201cdicta,\u201d which means words not technically required to reach the outcome in the case. But Scalia most certainly did not reject the plaintiffs\u2019 standing in the Lujan case on the grounds that they were merely expressing disagreement with government policy. Instead, he was careful to say that they hadn\u2019t shown that they had firm plans to visit the endangered species in question. In context, Roberts\u2019s interpretation of the Lujan opinion is superior to that of the majority.<\/p>\n
The reason the current case is so distressing is that the conservative majority used it as an opportunity to make it still harder to sue the federal government in an emergency docket case that did not benefit from full oral argument or briefing. More than any other president, Trump delights in exceeding the bounds of congressional authority. In practice, that means it\u2019s up to ordinary citizens to bring lawsuits. The court is making it far more difficult to bring such lawsuits.<\/p>\n
Trump\u2019s desire to act like an emperor, marring the Washington cityscape with disproportionately large triumphal arches and ballrooms, is offensive both aesthetically and symbolically; these are not monuments to democracy. The court\u2019s ballroom decision is disappointing for deeper reasons: It weakens the capacity of the judiciary to keep the president within the limits of his legal authority. In so doing, it undermines the rule of law itself.<\/p>\n
This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. <\/p>\n
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of \u201cTo Be a Jew Today: A New Guide to God, Israel, and the Jewish People.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"In a genuinely surprising decision, the Supreme Court has dismissed a lawsuit against President Donald Trump\u2019s congressionally unauthorized…\n","protected":false},"author":2,"featured_media":217442,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":"","_share_on_mastodon":"0"},"categories":[146],"tags":[535,55],"class_list":["post-217441","post","type-post","status-publish","format-standard","has-post-thumbnail","category-john-roberts","tag-john-roberts","tag-opinion"],"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@people\/117224657703750955","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/217441","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/comments?post=217441"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/217441\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media\/217442"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media?parent=217441"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/categories?post=217441"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/tags?post=217441"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}