Chief Justice John Roberts led the dissent from the GOP-appointed Supreme Court majority’s 5-4 decision on Monday that lets White House ballroom construction proceed while litigation continues.

The decision follows a previous temporary order from Roberts that let construction continue pending further word from the full court. He is the justice who initially fields emergency litigation from Washington, D.C., courts. His prior administrative stay was only a placeholder action pending the decision that came Monday.

“Today, we do not pass upon the legality of the government’s East Wing project,” the other five Republican-appointed justices said in an unsigned “per curiam” opinion. Rather, they said they were only ruling that the administration is likely to prevail in showing that the plaintiff who sued to stop the project lacks legal standing, and that other emergency relief factors also favor the government.

“The government has established that it is likely to succeed on the merits of a significant legal question, that it would likely suffer irreparable harm without a stay, and that the balance of equities tips in its favor,” the majority said.

It is not surprising that the high court sided with the administration on this issue, or that the three Democratic appointees dissented. More notable, however, is the role that Roberts played.

Joined by the court’s three Democratic appointees, the chief justice said the construction is “likely unlawful,” that there is sufficient standing and that Monday’s decision “is no victory for the separation of powers.”

The separation-of-powers critique in particular is remarkable because, in previous significant cases, Roberts has led the full six-justice GOP-appointed majority over Democratic-appointed dissents on separation-of-powers grounds.

He quoted Winston Churchill in his dissent, saying that “[w]e shape our buildings, and afterwards our buildings shape us.” Roberts then concluded by writing, “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.”

A D.C. judge had entered a preliminary injunction against the administration, and a divided appellate panel upheld the injunction on Aug. 7. The panel cited the lack of legally required congressional authorization for Trump’s desired construction, over dissent from a Trump-appointed judge.

The two judges in the panel majority, Obama appointee Patricia Millett and Biden appointee Bradley Garcia, said they weren’t weighing in on the wisdom of the project as a policy matter but that “whether or not a massive ballroom should be constructed is for Congress to decide.”

The panel majority said the group that brought the case, the National Trust for Historic Preservation, had standing to sue, pointing to one of its members, professor Alison Hoagland, an architectural historian who studies and relies on the architectural design of the White House and President’s Park in her work. Hoagland said that building the 90,000-square-foot ballroom would permanently harm the White House and President’s Park by overshadowing the White House, and that those changes would cause both professional and personal injuries to her “aesthetic, cultural, and historic interests.”

While the administration argued that Hoagland could avoid her claimed injury by simply averting her gaze, the panel majority said the administration’s “cramped” theory of standing “would deem no one injured by a decision to raze the Statue of Liberty, to obscure the names on the Vietnam War Memorial, or to install a political billboard atop Mount Rushmore.”

In her dissent, Trump appointee Neomi Rao said the case isn’t about “tearing down the White House and building a skyscraper or razing the Statue of Liberty.” She said it’s about the balance between “the asserted aesthetic harm to a single passerby and the safety and security of the President as well as his family, staff, and guests at the White House.” Rao said that balance falls in the government’s favor and that the district court therefore “abused its discretion in seizing control of construction at the President’s home and office.”

Rao said Hoagland lacks standing because her “asserted aesthetic injury” is either “a speculative injury to her particular use of the White House” or “an imminent but generalized injury from incidentally viewing the ballroom.” Either theory fails, Rao said, arguing the district court and the appeals court majority stretched Hoagland’s claims to satisfy standing requirements.  

In his dissent on Monday, Roberts said the majority failed to appreciate that the White House “is not just any building” and that, when it comes to historic preservation, “Hoagland is not just any person.” He continued: “In failing to appreciate as much,” the majority “misconceives the plaintiff’s injury, allowing the Executive’s likely infringement of the Legislature’s power of the purse and authority to regulate federal property in the District of Columbia to continue.”

When U.S. District Judge Richard Leon issued the injunction — which has not taken effect while this appeal plays out — he emphasized that his order would not halt the project entirely. The George W. Bush appointee’s order specified that it wouldn’t prohibit “below-ground construction, including below-ground construction of national security facilities, as well as above-ground construction short of constructing the proposed above-ground ballroom that is strictly necessary to cover, secure, and protect such national security facilities, provided that any such construction will not lock in the above-ground size and scale of the ballroom.”

The order also said it wouldn’t prohibit measures and construction “strictly necessary” to keep Trump, his staff and the White House grounds safe (short of constructing the proposed above-ground ballroom) and so long as any such measures don’t lock in the above-ground size and scale of the ballroom.

Seeking to lift the injunction immediately at the Supreme Court, Solicitor General John Sauer said leaving it intact “would wrongfully install a single district judge as sole arbiter of what further construction is ‘strictly necessary’ to protect the safety of the President, his family, staff members, and visitors to the White House, including foreign dignitaries, and presidents and prime ministers of other countries.”

Opposing the administration’s application, the National Trust noted that each court that had examined the issue so far has agreed the government has “no unilateral legal authority — constitutional, statutory, or otherwise — to build a massive ballroom on the site of the now-demolished East Wing.”

The group said it would face “irreparable harm” if construction were to continue and potentially be completed before its lawsuit could be resolved. It said government officials have made “no secret of the fact that if the Court permits construction to continue, they will declare the case over.”   

And despite the administration’s claims of national security concerns, the trust noted that the injunction lets officials “continue building their underground military facility, to protect the President, his family, and his staff, and to maintain the safety and security of the White House complex.”

As for what happens next procedurally, the majority said the district court injunction is lifted pending the government filing a Supreme Court petition for review and the court’s handling of that petition. While the timeline for when the litigation will conclude is not clear, the construction is poised to continue indefinitely in the meantime.

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