I often write that my favorite writings by Chief Justice Roberts are when he's in dissent. These are the rare instances when I think he actually believes what he is writing. But the opposite seems true in National Park Service v. National Trust for Historic Preservation in the United States. The Court, by a 5-4 vote, stayed the injunction, thus allowing construction of the East Wing ballroom/military complex. The majority opinion was per curiam, though as I'll explain below, it is almost certainly a Kavanaugh production. Chief Justice Roberts was in dissent, joined by the Court's three liberals. Based on my quick search, this lineup appeared only one other time in NIH v. APHA.
At this point, John Roberts is utterly unrecognizable. This was the person that George W. Bush nominated to the Supreme Court because of his robust understanding of presidential power in the national security context, yet Roberts dismissed the government's national security concerns in a perfunctory footnote. This was the same justice who bitterly dissented in Massachusetts v. EPA, finding that the broad theory of standing would inject the judiciary into political disputes, but Roberts allowed a person walking past the White House to halt the construction of a military facility. This was a Justice who upheld the arrest of a D.C. tween who ate a single french fry on the metro, but extolled a D.C. busybody who walked past the metro as "deeply committed" to preserving the nation's capital.
This sentence from Justice Kavanaugh's opinion is the sort of thing that Chief Justice Roberts would mutter in his sleep:
Meanwhile, on the other side of the ledger and against these harms, the only harm the Trust claims is the offense one of its members will suffer from having to view a structure of the "scale," "height," and "massing" the government intends. Id., at 75a. These harms and equities are not nearly in equipoise.
At this point, the Chief Justice is a shadow of his former self. This wa
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