The Court Overturns the D.C. Circuit’s Faulty “Aesthetic Injury” Standing Doctrines, and the Chief’s Dissent Now Resembles Churchill’s Echoes
I frequently note that the Chief Justice’s most striking writings often surface when he is dissenting. Those moments feel like the portion of his work where he speaks with genuine conviction. Yet the impression shifts in National Park Service v. National Trust for Historic Preservation in the United States. The Court, in a 5-4 decision, paused the injunction, thereby permitting the East Wing’s ballroom and adjacent military complex to proceed. The majority’s ruling came down per curiam, though the sense in commentary is that Justice Kavanaugh played a decisive hand. Chief Justice Roberts dissented, with the court’s liberal bloc backing him. A quick scan suggests that this exact alignment has appeared only once before, in NIH v. APHA.
By this point, John Roberts scarcely resembles the jurist whom George W. Bush nominated for his robust grasp of presidential power in matters of national security. In a brief footnote, he brushed aside the government’s security concerns. He had previously issued a sharp dissent in Massachusetts v. EPA, arguing that a broad theory of standing would entangle the judiciary in political fights, yet he now seems to allow a passerby near the White House to derail a military project. Once renowned for defending the arrest of a D.C. teenager who ate a single french fry on the metro, he also lauded a D.C. busybody for being “deeply committed” to safeguarding the capital when it suited him.
This line from Justice Kavanaugh’s opinion is the sort of thing Chief Justice Roberts would mutter in his sleep:
Meanwhile, on the other side of the ledger and against these harms, the only harm the Trust claims is the offense one of its members will suffer from having to view a structure of the “scale,” “height,” and “massing” the government intends. Id., at 75a. These harms and equities are not nearly in equipoise.
At this stage, the Chief Justice appears a pale shadow of his former self. This was a case where Roberts concluded that Trump should not prevail, and thus he did not prevail. In the end, his dissent devolved into Churchillian flourishes about Winston Churchill. For a more fitting summary of his tenure, consider this maxim: “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
I hopeful for many more Roberts dissents in the coming term. As I’ve observed before, friends don’t let the chief justice’s fifth vote stand unchallenged. There must be a path to a five-vote result without his participation.
If Chief Justice Roberts loses here, then Justice Kavanaugh emerges the winner. I am reasonably confident that Justice Kavanaugh authored the majority opinion. He has become the Court’s foremost authority on standing, and I suspect he also drafted the jurisdictional portion in Trump v. California.
And as I anticipated, the Court rejected the D.C. Circuit’s so-called “aesthetic” injury precedents. Justice Kavanaugh opens with the pivotal assertion:
This Court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.
Even if the D.C. Circuit could have found standing, the Supreme Court did not. It seems Justice Kavanaugh labored under the D.C. Circuit’s faulty standing doctrines for roughly twenty years, and he has now rolled them back. The D.C. Circuit should take this decision to heart and recognize that offended observers do not, by themselves, constitute an Article III injury. Indeed, this ruling should extend to the Establishment Clause context and Havens Realty standing as well. People objecting to a Ten Commandments display rest on nothing more than “offense, disagreement, or distaste.”
More broadly, the ruling feels particularly timely in light of Alliance for Hippocratic Medicine. Opponents of abortion were denied “aesthetic” injury standing to witness births; therefore, architecture enthusiasts should similarly be denied such standing to view edifices. Whatever the precise rules may be, they ought to be applied with equal force.
I regard Justice Barrett as the Court’s leading proceduralist. Once more, she concluded that no party possessed standing in Murthy, Alliance for Hippocratic Medicine, California v. Texas, and essentially every other matter Texas brought before the Court. Barrett clerked for Justice Scalia, and it stands to reason she has contemplated Lujan more deeply than most. If her take aligns with Justice Kavanaugh’s reading of Lujan, I am with Barrett. The crucial sentence is this:
Proceeding to reject the plaintiffs’ claim to standing, Lujan stressed that a cognizable interest is a necessary component of standing but not a sufficient one: Article III “requires more than an injury to a cognizable interest.” 504 U. S., at 563 (internal quotation marks omitted).
In essence, the D.C. Circuit stretched Lujan beyond its proper bounds, and the Supreme Court has now cried out for restraint.
