Strictly Ballroom: Justice Kavanaugh Defeats Chief Justice Roberts

I often write that my favorite writings by Chief Justice Roberts are when he’s in dissent. These are the rare instances when I think he actually believes what he is writing. But the opposite seems true in National Park Service v. National Trust for Historic Preservation in the United States. The Court, by a 5-4 vote, stayed the injunction, thus allowing construction of the East Wing ballroom/military complex. The majority opinion was per curiam, though as I’ll explain below, it is almost certainly a Kavanaugh production. Chief Justice Roberts was in dissent, joined by the Court’s three liberals. Based on my quick search, this lineup appeared only one other time in NIH v. APHA.

At this point, John Roberts is utterly unrecognizable. This was the person that George W. Bush nominated to the Supreme Court because of his robust understanding of presidential power in the national security context, yet Roberts dismissed the government’s national security concerns in a perfunctory footnote. This was the same justice who bitterly dissented in Massachusetts v. EPA, finding that the broad theory of standing would inject the judiciary into political disputes, but Roberts allowed a person walking past the White House to halt the construction of a military facility. This was a Justice who upheld the arrest of a D.C. tween who ate a single french fry on the metro, but extolled a D.C. busybody who walked past the metro as “deeply committed” to preserving the nation’s capital.

This sentence from Justice Kavanaugh’s opinion is the sort of thing that 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 point, the Chief Justice is a shadow of his former self. This was a case where Roberts determined that Trump should not win, so he did not win. In the end, all the Chief could do is wax about Winston Churchill in his dissent. Well, I have a far more appropriate quotation for the Chief’s tenure: “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 would hope to see many more Roberts dissents next term. As I wrote, “Friends don’t let friends be the chief justice’s fifth vote.” Find a way to get to five without the Chief.

If Chief Justice Roberts is the loser here, then Justice Kavanaugh is the winner. I am fairly confident that Justice Kavanaugh wrote the majority opinion. He has become the Court’s stickler for standing. I think he also wrote the jurisdictional analysis in Trump v. California.

And as I predicted, the Court rejected the D.C. Circuit’s “aesthetic” injury precedents. Justice Kavanaugh leads off with the critical line:

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 found standing, the Supreme Court did not. I suspect that Justice Kavanaugh labored under the D.C. Circuit’s terrible standing decisions for about two decades. He has now scaled them back. I hope the D.C. Circuit takes this ruling to heart, and realizes that offended observers do not state an Article III injury. Indeed, this ruling should spill over to the Establishment Clause context, as well as Havens Realty standing. People who object to a Ten Commandments display have nothing more than “offense, disagreement, or distaste.”

More generally, there is something satisfying about this ruling in light of Alliance for Hippocratic Medicine. Those opposing abortion were denied “aesthetic” injury standing to see babies born. It only follows that architecture wonks likewise lack “aesthetic” injury standing to see buildings. Whatever the rules are, they should be applied equally.

I consider Justice Barrett to be the leading proceduralist on the Court. Again, she found that no one had standing in Murthy, Alliance for Hippocratic Medicine, California v. Texas, and every other case Texas brought to the Court. Barrett clerked for Justice Scalia, so likely has thought about Lujan more than anyone else on the bench. If she thinks Justice Kavanaugh has the better reading of Lujan, then I’m with Barrett. This is the key sentence:

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).

At bottom, the D.C. Circuit extended Lujan in improper ways, and the Supreme Court has now yelled “stop it.”