ab ovo

Roberts dissents as the Court stays the ballroom injunction

31 August 2026

The Supreme Court stayed the injunction against above-ground construction of the White House ballroom on 31 August 2026, granting the government’s application in No. 26A203, National Park Service v. National Trust for Historic Preservation in the United States.1 The order provides that the injunction entered by the District Court for the District of Columbia in No. 1:25-cv-04316 “is stayed pending the filing and disposition of the government’s petition for a writ of certiorari, if such writ is timely sought,” that the stay “shall terminate automatically” if certiorari is denied, and that it terminates on the sending down of the judgment if certiorari is granted.1 The Court acted per curiam. Chief Justice Roberts dissented, joined by Justices Sotomayor, Kagan and Jackson.1 The federal government began demolishing the East Wing in October 2025 and completed it that December; the district court enjoined further above-ground construction on 31 March 2026, and the D.C. Circuit upheld that injunction on 7 August 2026.12

  1. Nothing was decided about whether the ballroom is lawful. The per curiam reaches Article III and stops there, and the dissent says so in terms: the Court allows construction to go forward “not because that construction is legal, but on the ground that the Trust likely lacks Article III standing to challenge it.”1 The majority adds that the district court “likely exceeded its Article III authority to enjoin the activities of a coordinate branch of government,” citing Trump v. CASA (see Supreme Court restricts universal injunctions in Trump v. CASA).13

  2. Standing turns on whether looking at a building is a way of using it. The Trust relied on a declaration from executive committee member Alison K. Hoagland, who visits the neighbourhood about once a month and asserts injury to her “aesthetic, cultural, and historical interests.”1 The majority answers that “mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.”14 The dissent replies that Summers recognised that “mere esthetic interests” can be concrete, that the Laidlaw plaintiffs swam and hiked as well as looked, and that “the principal way a person enjoys a historic building or object is by looking at it.”156

  3. The Chief Justice dissented from a stay he had himself entered ten days earlier. On 21 August he ordered the injunction “stayed pending further order of THE CHIEF JUSTICE or of the Court” and referred the application to the Court, which granted it on 31 August.21 The two acts are different instruments: an administrative stay holds the position while an application is briefed and carries no merits finding, where the order of 31 August rests on a likelihood-of-success assessment and runs until certiorari is resolved.12

  4. The dissent’s objection is a spending and property one, not a preservation one. It reads 40 U.S.C. § 8106 to prohibit any “building or structure … on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress,” and finds that authority in neither of the two provisions the government cites: 3 U.S.C. § 105(d)(1), under which Congress appropriated $2,475,000 this fiscal year for Executive Residence maintenance, nor 54 U.S.C. § 100101(a), which directs the National Park Service to conserve historic objects.1789 A couple of million dollars for maintenance, the dissent reasons, “likely does not authorize the President to use hundreds of millions of dollars in private donations to tear down the East Wing and construct a ballroom in its stead.”1

Footnotes

  1. National Park Service v. National Trust for Historic Preservation in the United States, No. 26A203, 609 U.S. ____ (2026), on application for stay, decided 31 August 2026; per curiam, with Roberts, C.J., dissenting, joined by Sotomayor, Kagan and Jackson, JJ. 14 pages. Quoted at 1 (the project history and the injunction as clarified, which “essentially permitted the government to continue work on the new below-ground military installation but enjoined any further construction above ground, except as ‘strictly necessary’ to protect the White House, the President, and his staff”), 3 (the Hoagland declaration; “mere offense, disagreement, or distaste”), 6 (“likely exceeded its Article III authority to enjoin the activities of a coordinate branch of government,” citing Trump v. CASA, 606 U.S. 831, 859), 8 (the operative stay), 9-10 (40 U.S.C. 8106 and the dissent’s reading; “not because that construction is legal”), 11 and 13 (Summers and Laidlaw), 14 (“the principal way a person enjoys a historic building or object is by looking at it”; “The White House is not just any building”; “Today’s decision is no victory for the separation of powers”; the Churchill quotation; and the footnote recording that the government told the district court its below-ground work was “driven by national security concerns independent of the above-grade construction” of the ballroom and that the injunction “prohibits only the building of a ballroom — not the building of belowground national security facilities or above-ground work necessary to protect them”). The per curiam also records declarations from the Director of National Intelligence, the Director of the CIA, the Director of the FBI, the Director of the Secret Service, the Secretary of State, the Secretary of Homeland Security and the Secretary of the Army on national security harms from enjoining a “single, coherent” project. https://www.supremecourt.gov/opinions/25pdf/26a203_2b8e.pdf ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7 ↩8 ↩9 ↩10 ↩11 ↩12 ↩13

  2. Supreme Court of the United States, docket for No. 26A203, National Park Service, et al., Applicants v. National Trust for Historic Preservation in the United States, application docketed 14 August 2026; lower court United States Court of Appeals for the District of Columbia Circuit, No. 26-5123. Proceedings: application for a stay submitted to The Chief Justice (13 August); response requested by The Chief Justice, due 18 August (14 August); response and amicus briefs filed (16-18 August), including briefs of the Society for the Rule of Law, Members of Congress, Indiana et al. and the Campaign Legal Center; reply of applicants (19 August); order of The Chief Justice staying “the preliminary injunction entered on April 16, 2026” pending further order (21 August); application referred to the Court and granted (31 August). The docket gives 16 April 2026 as the date of the preliminary injunction; the per curiam gives 31 March 2026 as the date it issued and describes it as “later clarified.” Counsel of record for the applicants: Solicitor General D. John Sauer. Opinion links on this docket are written with spaces around the equals sign, so they do not appear in a search for href=". https://www.supremecourt.gov/docket/docketfiles/html/public/26a203.html ↩ ↩2 ↩3

  3. Trump v. CASA, Inc., 606 U.S. 831 (2025) (Barrett, J.), holding that universal injunctions likely exceed the equitable authority Congress conferred by the Judiciary Act of 1789; the per curiam cites it at 859 for the limit on enjoining a coordinate branch. https://www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf ↩

  4. FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 390 n.3 (2024): “this Court has long made clear that distress at or disagreement with the activities of others is not a basis under Article III for a plaintiff to bring a federal lawsuit.” The per curiam also cites Valley Forge Christian College v. Americans United, 454 U.S. 464, 485 (1982), Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227 (1974), and United States v. Richardson, 418 U.S. 166, 177 (1974). https://supreme.justia.com/cases/federal/us/602/367/ ↩

  5. Summers v. Earth Island Institute, 555 U.S. 488, 494 (2009), noting that an injury to a plaintiff’s “mere esthetic interests” can be concrete and particularized. Cited by the dissent at 13. https://supreme.justia.com/cases/federal/us/555/488/ ↩

  6. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-183 (2000), where the plaintiffs had “aesthetic and recreational” interests in a river they fished, swam in, hiked and camped alongside. The dissent argues at 14 that the distinction the majority draws from these facts “does not hold up.” https://supreme.justia.com/cases/federal/us/528/167/ ↩

  7. 40 U.S.C. § 8106, prohibiting the erection of any “building or structure … on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title40-section8106&edition=prelim ↩

  8. 3 U.S.C. § 105(d)(1), authorising appropriations for “the care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting (including electric power and fixtures) of the Executive Residence at the White House.” The dissent records that Congress appropriated $2,475,000 under it this fiscal year “for required maintenance, resolution of safety and health issues, and continued preventative maintenance,” citing the Consolidated Appropriations Act, 2026, Pub. L. 119-75, 140 Stat. 451. https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title3-section105&edition=prelim ↩

  9. 54 U.S.C. § 100101(a), directing that the National Park Service manage national park land so as to conserve the historic objects on it. https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title54-section100101&edition=prelim ↩

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