The Constitutional Ballroom

What do Nile crocodiles and Asian elephants have in common with the White House ballroom? They all, to varying degrees, exceed the grasp of the federal judiciary. That’s the upshot of the Supreme Court ruling that challengers of President Trump’s project lack legal standing to sue for an immediate halt to construction. The five to four ruling means that the construction could well be finished before the federal courts complete their deliberations in the dispute.Waltzing in dissent with Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, Chief Justice Roberts deems the ballroom “likely unlawful.” He says its “aesthetic injury” is “concrete and particularized.” Yet the majority reckons that to have grounds to sue, an opponent of the ballroom needs to show an “injury in fact” or the “invasion of a legally protected interest,” pointing to the precedent in Lujan v. Defenders of Wildlife.The majority’s emphasis on standing echoes the prior appraisal of a Trump nominee to the bench, Judge Neomi Rao of the District of Columbia appeals circuit. She was the dissenting vote on a three-judge panel of circuit riders, the majority of whom ruled to halt the ballroom project. The circuit panel majority relied on what Judge Rao called “the aesthetic displeasure of a single passerby” as the fulcrum of the ruling against the president’s construction.Judge Rao’s focus on standing proved prescient. The question of whether a party has grounds to sue, these columns have asserted, is a “reminder of a constitutional limit on federal courts, the Cases and Controversies clause.” As Justice Neil Gorsuch recently wrote, this provision demarcates disputes that are “fit for judicial resolution from questions of public policy.” The latter, he said, are “reserved to the elected branches” or “left to the debating hall.”Viewed through this lens, it is telling that the majority in the ballroom case relies on Lujan as a benchmark for standing. A case from 1992, Lujan held that ecological activists lacked grounds to challenge a federal environmental regulation. In 1986, the Interior and Commerce Departments had limited to domestic affairs the regulatory scope of the Endangered Species Act. This sparked the ire of two nature lovers, Joyce Kelly and Amy Skilbred. The two took to the courts to demand Uncle Samuel reverse course. Ms. Kelly groused that the regulation might impair Egypt’s wildlife. She, as Justice Antonin Scalia wrote for the high court, had in 1986 visited there and said she “observed the traditional habitat of the endangered Nile crocodile.” Meanwhile Ms. Skilbred said she had “traveled to Sri Lanka in 1981” where she admired the “habitat” of such “endangered species” as “the Asian elephant and the leopard.”Both Ms. Kelly and Ms. Skilbred lamented that the revised regulation could harm them by precluding their future enjoyment of these marvels. The Great Scalia conceded that when a party in a suit is “not himself the object of the government action or inaction he challenges,” the possibility of standing to sue “is not precluded.” Yet it is, he concluded for the majority in Lujan, “substantially more difficult” to reach standing in such circumstances.In Lujan, the Nine found Ms. Kelly and Ms. Skilbred failed to clear this hurdle. The ballroom dispute echoes Lujan in that a National Trust for Historic Preservation board member, Alison Hoagland, finds the ballroom’s “design distasteful,” as the majority puts it. So she sued to prevent “permanent and irreparable harm” to the White House. The majority, insisting that standing cannot be founded on “offense, disagreement, or distaste,” rejects such crocodile tears.

The Constitutional Ballroom

The Constitutional Ballroom

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