Chief Justice Roberts deems Trump's ballroom 'likely unlawful' and laments that the 'separation of powers' lost in unusual dissent

The U.S. Supreme Court's conservative majority, except for Chief Justice John Roberts, ruled Monday that the architectural historian who tried to block President Donald Trump from building a ballroom where the East Wing of the White House used to be didn't have standing to sue after all.

Although the issuance of stay may not come as a surprise to those closely watching the Supreme Court's actions to this point and the proceedings in the U.S. Court of Appeals for the District of Columbia Circuit, it nonetheless stood out that Roberts penned a dissent that, in a rare occurrence, was joined only by the court's liberal wing.

Roberts, the circuit justice for Washington, D.C., had issued an administrative stay of a lower court injunction 10 days ago as the high court considered the DOJ's request for a stay.

Thereafter, the Trump administration argued that a stay was warranted because Senior U.S. District Judge Richard Leon and the D.C. Circuit wrongly found the National Trust for Historic Preservation and architectural historian Alison Hoagland had standing to sue on "aesthetic injury" grounds.

A D.C. Circuit panel, in a 2-1 decision, earlier rejected the "bold assertion that the Executive can act with utter lawlessness, destroying treasured national landmarks and harming the interests of individuals, and that no court can stop it flouts our constitutional order." But the lone dissenting appellate judge in that case, a Trump appointee, forecast the road ahead.

U.S. Circuit Judge Neomi Rao criticized the D.C. Circuit for appointing itself as supervisors of the president's construction project by signing off on Leon's "blatant abuse of discretion." Rao wrote that the majority "elevated the aesthetic displeasure of a single passerby" over Trump's determination that the "ballroom is necessary for the overall security of the White House as well as to provide a secure space for hosting large presidential events."

The DOJ leaned heavily on Rao's dissent while making the same case — that Hoagland and the Trust had no standing, and that the president's ballroom project must continue.

On Monday, the Supreme Court sided 5-4 with the administration, even as the conservative majority said "we do not pass upon the legality of the government's East Wing project."

"We conclude only that, based on the submissions before us, the government is likely to prevail in showing that the Trust lacks Article III standing to challenge the project in federal court and that the remaining stay factors favor relief," the per curiam decision said, issuing a stay as the government files a petition for a writ of certiorari.

Roberts, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson joining him, led the charge in the opposite direction, noting that Congress "has not passed any law resembling 'express authority' for the Executive's construction of it," the ballroom.

The chief justice said that Hoagland "is not just any person" and the White House is "not just any building," also lamenting that "[t]oday's decision is no victory for the separation of powers."

Roberts then wondered what the repercussions of this decision will be for the realm of environmental law, if a "standalone concrete and particularized aesthetic injury" like Hoagland's "can be recast as mere offense[.]"

"What saved their aesthetic injuries from being classed as mere distaste for the actions of government or private industry?" the chief asked, before concluding with a Winston Churchill quote that "[w]e shape our buildings, and afterwards our buildings shape us."

"All the more reason to ensure that those responsible follow the rules in deciding what to tear down and what to build up at the People's House," Roberts said.

Hoagland and the Trust maintained that the Trump administration was trying to "outrun judicial review" and didn't deserve a stay.