The U.S. Supreme Court’s 5-4 decision backing U.S. President Donald Trump’s massive ballroom at the White House is already playing into challenges over his other pet projects and has renewed a debate over a legal doctrine tied to an abandoned California ski resort and crocodiles in Egypt. Over the objection of U.S. Chief Justice John Roberts and the court’s three liberals, five conservative justices last week barred a historic preservationist from suing over the US$400 million ballroom for “aesthetic” reasons. The Trump administration has rushed to use that decision to shut down lawsuits against the president’s other construction plans for the nation’s capital. At the heart of some of those cases are questions about the scope of “aesthetic standing,” or the idea that Americans have a right to sue in some instances based on changes that deprive them of the enjoyment of seeing a landscape, for instance, or an endangered animal. Trump argues that critics suing over his projects have not met that seemingly subjective standard. And when it came to his ballroom on the White House grounds, five justices agreed. “This court has not found standing in circumstances like these before,” the court wrote Monday in a 5-4, unsigned decision, which allowed Trump to continue work that is already well underway. “We have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury.” In the days since, the Justice Department quickly inserted that Supreme Court order into lower courts reviewing the president’s 250-foot arch proposed on a bank of the Potomac River and an effort to remodel a public golf course in Washington, DC. Other cases, such as the administration’s beleaguered effort to renovate the Lincoln Memorial Reflecting Pool and to paint an iconic Gilded Age government building near the White House, have also raised questions about standing. On Friday, federal court reviewing the Reflecting Pool case ordered a new round of briefing in light of the ballroom ruling. The challenge with aesthetic standing, said Robert Pushaw, a professor at Pepperdine University Caruso School of Law, is that “aesthetic injury is a gut call.” That’s because, he said, aesthetics are a matter of personal taste and inherently subjective. Because it came in an emergency docket case, the court’s decision Monday technically has limited precedential value. “But the case does indicate where five conservative justices are going, and they might be inclined in a later case to either reject aesthetic injuries or limit them to plaintiffs challenging environmental laws,” Pushaw said. “Either way, however, plaintiffs suing over alleged legal violations will have great difficulty establishing standing.” Around the same time the Supreme Court was tightening standing rules for federal courts in the 1970s, the justices introduced the idea of aesthetic standing in a case challenging a Disney ski resort in Sequoia National Park. In that case, Sierra Club v. Morton, Justice Potter Stewart wrote that “aesthetic and environmental wellbeing” are “important ingredients of the quality of life” and are not less deserving of legal protection than “economic wellbeing.” The plaintiff in that case, the court ruled, ultimately did not have standing to sue. (The ski resort was nevertheless later abandoned.) In his dissent Monday, Roberts also cited a 1992 decision challenging foreign aid for a project that wildlife groups feared would affect the habitat of the endangered Nile crocodile. In that case, a 6-3 court concluded the plaintiffs did not have standing to sue, but not before the court wrote that “of course” the desire to “use or observe an animal species, even for purely esthetic purposes” is “undeniably a cognizable interest for purpose of standing.” With the court’s rejection of the ballroom lawsuit Roberts wrote, “it now is the case that ‘I want to look at a crocodile’ can adequately answer the ever critical ‘what’s it to you?’ question” of standing, but that “‘I want to look at the White House’ cannot.” Plaintiffs still standing If the historic preservation groups and their members don’t have standing to sue, it’s not clear who does and whether Trump’s projects can be stopped by federal courts. But groups and experts who have closely followed the growing disputes over Trump’s projects say there remains plenty of room for those challenges to continue despite the high court’s ballroom decision. Nicolas Sansone with the Public Citizen Litigation Group, and the lead attorney challenging the arch, told CNN the case is different. “Irrespective of how we view that analysis on its own terms, we believe that our case presents meaningfully different facts and we’re prepared to explain those factual distinctions to a district court,” he said in an interview before the administration announced its plans to break ground on the arch. Sara Bronin, a George Washington University law professor who served as chair of the Advisory Council on Historic Preservation during President Joe Biden’s administration, said the court’s decision in the ballroom case “makes it harder, but not impossible, for preservationists to use litigation to force the federal government to follow its own rules to protect historic places.” Plaintiffs challenging those projects, she said, “will just need to more fully articulate the ways the challenged action harms or will harm them.” Trump and his supporters have argued the theory of standing raised by the National Trust for Historic Preservation in the ballroom case would have allowed virtually anyone to stop a government building project just because they didn’t like the design. “The National Trust for Historic Preservation artificially created standing from one member’s opinion who said the completed building would diminish her personal enjoyment of visiting the White House,” Idaho Attorney General Raúl Labrador, a Republican, told CNN. “Activists cannot be allowed to manufacture standing from personal displeasure and use it to stop any project they oppose,” he said. Trump has repeatedly said the same, in coarser language, all year. “There is absolutely no argument that a woman walking her dog in the vicinity of the White House has STANDING to stop such a desperately needed National Security structure for the people of the United States of America, as it will provide Presidents, current and future, a secure space to do their jobs, especially when she never saw the Building, because it had not risen, and she had no rendering, or pictures of the Building because they, also, were in the formative stages of production,” the president wrote in a Truth Social post last month.
