What Will The "Apolitical Proceduralist" Do With The East Wing Case?
Will Justice Barrett really find standing based on an "aesthetic" injury?
The D.C. Circuit found that President Trump's construction of the East Wing is unlawful, but has stayed the ruling for two weeks to permit the SG to seek a stay.
Trump probably cares about this construction issue more than tariffs and birthright citizenship combined. If the Supreme Court actually blocks the construction, the President will have a daily reminder outside his window of who cast the fifth vote.
Speaking of the fifth vote, I suspect Justice Kavanaugh, who spent his formative years working in the West Wing, will not vote to block the construction.
What does the Chief Justice do here? If I were Roberts, I would immediately grant an administrative stay, grant cert before judgment after a month or so of delays, schedule oral argument for spring 2027, and in June 2027 hold that the construction of the ballroom is so far along that the equities no longer permit an injunction. Then, once the East Wing is fully constructed, the Court will vacate Judge Leon's exclamation-point-riddled opinion with Munsingwear!
Ultimately, the fifth vote would fall to Justice Barrett. What would an "apolitical proceduralist" do here? The neatest path is to find there is no standing. The D.C. Circuit's entire ruling is premised on "aesthetic" injury standing. I wrote a post on this topic back in March. It cannot be the case that a person who walks past the White House has Article III standing to stop the construction of an underground security facility covered by a ballroom. Or perhaps Justice Barrett finds that the equities favor a stay. These two sentences from Judge Rao's dissent sum up 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.
Let's see what happens.