Will Justice Barrett truly find standing in an ‘aesthetic’ injury?
The D.C. Circuit determined that Mr. Trump’s East Wing project violates the law, yet it issued a two-week pause to allow the Solicitor General to pursue a stay from higher courts.
The President appears to care about this construction dispute more than tariff policy or birthright citizenship combined. If the Supreme Court were to block the project, he would face a daily reminder, visible from his residence, of the judge who cast the decisive fifth vote.
Regarding that fifth vote, I expect Justice Kavanaugh—who spent part of his formative years in the West Wing—to refrain from voting to halt the construction.
How should the Chief Justice respond in this scenario? If I were in his shoes, I would promptly issue an administrative stay, grant cert before judgment after a short interval, set oral argument for spring 2027, and by June 2027 conclude that the ballroom’s construction is so far along that the equities no longer permit an injunction. Then, once the East Wing is finished, the Court would overturn Judge Leon’s emphatic ruling using Munsingwear!
In the end, the deciding vote would likely fall to Justice Barrett. What would an “apolitical proceduralist” do in this situation? The cleanest approach would be to conclude there is no standing. The D.C. Circuit’s entire ruling rests on the concept of standing based on an “aesthetic” injury. I discussed this matter in a post back in March. It cannot be that a passerby strolling by the White House has Article III standing to block the construction of an underground security facility beneath a ballroom. Or perhaps Justice Barrett would decide that the equities favor a stay. Two lines from Judge Rao’s dissent capture the essence of the case:
The district court elevated the aesthetic displeasure of a single passerby over the government’s security interests in the ballroom and the security risks of leaving an open construction site at the President’s home and office. These errors in equitable judgment require vacating the injunction.
Time will tell how this unfolds.
