How Donald Trump Outmaneuvers the Supreme Court

Perhaps the most unexpected aspect of Monday’s ruling was that Chief Justice John Roberts dissented. Roberts has typically been supportive of Presidential authority, and reluctant to use the Court’s emergency docket to block the Trump Administration from implementing its initiatives. In the ballroom case, Roberts broke with that stance, not only joining the three liberal Justices but reserving his authority to write the dissent himself. The six-page document did not exactly pulse with fiery rhetoric. “Today’s decision is no victory for the separation of powers,” Roberts observed, with characteristic mildness. But Roberts did not shy away from his bottom-line conclusion about the ballroom: “That construction is likely unlawful.” Under the Constitution, Roberts noted, Congress has complete authority over the District of Columbia and federal property; it has, he added, “explicitly prohibited” construction on federal property without congressional authorization. “The ballroom is a building or structure being erected on federal park grounds—President’s Park—in the District of Columbia,” Roberts wrote. “Yet Congress has not passed any law resembling ‘express authority’ for the Executive’s construction of it.”

It is not difficult to discern, in Roberts’s words, his frustration with Trump’s behavior: he quoted Theodore Roosevelt on the White House’s “stately simplicity.” There is, Roberts concluded, “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 rule-follower Trump is not. This does not sit well with the rule-bound Chief Justice.

Roberts’s vote was especially notable because, like other conservatives, he has long endorsed a parsimonious view of the constitutionally based doctrine of standing, which limits courts to deciding actual “cases” or “controversies.” The notion is that only those with a real stake in the dispute, not a generalized grievance, have the right to a hearing. In a 1993 law-review article, while still in private practice, Roberts praised standing requirements as a tool of “judicial self-restraint” that “compels the other branches of government to do a better job in carrying out their responsibilities under the Constitution.” In a 2srcsrc7 case, in which the Court found that states could seek to force the Environmental Protection Agency to address global warming, Roberts dissented, accusing the majority of engaging in “sleight-of-hand” to find that the states could sue.

On Monday, Roberts turned to the kind of loosey-goosey standing arguments he might once have disdained. “A historic preservationist,” he wrote, “can be aesthetically injured in a concrete, particularized way by the transformation of a historic building that she frequently enjoys, just as an environmentalist can sustain a concrete, particularized aesthetic injury from the extinction of a particular animal or the transformation of a particular forest or river that he regularly enjoys.” Jonathan Adler, a law professor at the College of William & Mary who has written on Roberts’s views on standing, told me he was surprised by Roberts’s vote. “The other conservatives viewed this as a case where standing has run amok,” Adler said. (Adler, for his part, said he is inclined to agree.) “Something about this case—the way it was argued, the occupant of the White House, the particulars of what was done to the White House—caused the Chief to see this differently.”

As offensive as the ballroom is, legally and aesthetically, it pales in importance next to other Trump initiatives that are hurtling toward the Court—among them his bid to limit the use of mail-in ballots in time for the midterm elections. Last month, the conservative Justices cleared the way for the Administration to proceed with implementing Trump’s executive order on mail-in ballots, which, among other things, ordered the federal government to assemble a list of voting-age citizens in each state and said ballots should be delivered only to eligible voters in special bar-coded envelopes. This move, the order stated, was necessary to “enhance election integrity.” The majority, once again overturning the conclusions of the lower courts, said that a challenge by some two dozen states was premature and that the states lacked standing because they weren’t harmed by the order.

Now a district judge has blocked the regulation adopted by the Postal Service to implement the order. “The record continues to lack any evidence regarding fraudulent absentee or mail-in voting,” the U.S. district judge Indira Talwani wrote. “In any event, the USPS’s interest in correcting an unsubstantiated problem through likely unconstitutional means is dwarfed by the overwhelming risk of pervasive disenfranchisement of citizens who need access to mail ballots in order to vote.” The Administration is appealing, comparing the need to supervise mail-in ballots to the handling of cremated remains. (Ashes, both pet and human, must be shipped in special U.S.P.S.-provided boxes trackable by bar code.) Having mail-in ballots, it argues, “creates an opportunity for the mails themselves to be used to facilitate serious criminal activity—and the Postal Service must have at least as much authority to prevent that sort of harm as it does to ensure that mortal remains are not lost in the mail.”