CJ Roberts and the Smithsonian Bypass Congress To Build New Latino Museum

At the same time that Chief Justice Roberts voted to halt the construction of the East Ballroom because Congress did not authorize it, the Chief Justice’s other institution voted to bypass Congress to build a new museum. I’m not sure anyone else saw the connection between these two items, but that’s why you read this blog.

For decades, there has been a movement to build new Smithsonian museums on the National Mall dedicated to African Americans, Latino Americans, and Women. The African American museum was built in 2016, but it somehow forgot to mention any of Clarence Thomas’s accomplishments. (If only one of Thomas’s colleagues was in charge!) Alas, the Museum for Latino Americans and Women did not make much progress.

In December 2020, Congress authorized two new Smithsonian museums for Latino Americans and Women.  Congress suggested two new sites on the Mall near the Washington Monument, or the Arts and Industries Building, which is an old structure adjacent to the Smithsonian Castle. In 2022, the Smithsonian Board of Regents selected the two sites on the mall near the Washington Monument for new construction. Both of those sites would have required congressional approval.

“The Board of Regents has been committed to meeting the December deadline Congress set for the selection of sites for these important new museums,” Steve Case, chairman of the Board of Regents, said in an email to The Washington Post. “Our search has narrowed to two sites on the National Mall that we believe are optimal, and appropriate. We hope Congress will now consider legislation so we can move forward, as we seek to more fully showcase our collective American journey.”

The Regents eliminated the Arts and Industries building from the process:

With this step, the Board of Regents effectively eliminates what was believed to be the most likely choice for at least one of the museums: the Arts and Industries Building, which was also considered for the African American Museum and is the only site of the four selected in June under Smithsonian control. [Lonnie] Bunch said in June that the Arts and Industries Building, which was designed in 19th-century, World’s Fair-era “Festival” style architecture, would have to be studied to see how it could be reimagined as a 21st-century museum.

Indeed, this building would have required digging into the ground to build a new annex:

The building resurfaced as a proposed home in 2016, when Becerra and then-Sen. Bob Menendez (D-New Jersey) introduced legislation that would have placed the museum there and added an underground annex. The historic building presented challenges for a modern museum: Its soaring ceilings and skylights were not designed for conventional exhibitions.

Fast-forward to the Trump Administration. Legislation to authorize the Woman’s museum and Latino museum failed after an amendment would have limited the museum’s exhibits to “biological women” and barred it from depicting “any biological male as a female.” Moreover, President Trump’s 2026 budget would have eliminated the Latino museum altogether.

Trump’s proposed 2026 budget sought to eliminate separate funding for the stand-alone museum and instead integrate Latino programming across the Smithsonian. The proposal drew objections from Democrats as well as Republican members of the Congressional Hispanic Conference, who called eliminating the museum’s funding a “disservice to the American public.” A White House official said at the time there was no reason to provide construction funding because Congress had not approved a site.

What did the Smithsonian Institution do in response to these political roadblocks? They reverted to the the Arts and Industries Building for the Latino museum. Why? Well objectively this was not the best site. But because the Smithsonian already owned the property, they didn’t need authorization. I don’t even know if Congress will have to appropriate any funds. Presumably, the Smithsonian will solicit donations from private groups to build the museum, much like they did with the African American History museum.

Don’t take my word for it. Read the Washington Post:

The decision revives a plan the Smithsonian considered but discarded years ago, a major shift for a project whose supporters have spent decades pushing for a new building on the National Mall designed specifically for the museum. It also gives the Smithsonian a path forward that does not depend on Congress approving construction on one of the undeveloped sites the institution previously selected.

The Smithsonian had chosen two sites near the Washington Monument for its two new museums — one across from the National Museum of African American History and Culture and another between the U.S. Holocaust Memorial Museum and the Tidal Basin. Both are controlled by the National Park Service and sit within the Reserve, an area of the Mall where Congress has restricted new construction.

Because the Smithsonian owns the Arts and Industries Building, the institution can decide how to use it without additional legislation.

That distinction could prove important. Building a Smithsonian museum from scratch can take a decade or longer, even after Congress authorizes it. The National Museum of African American History and Culture took more than a decade to build after its five-acre site was chosen.

Mike Gonzalez at Heritage stated the obvious: “And the only reason for that is that the Smithsonian could never win a vote in Congress to house the Latino Museum anywhere else, so it had to use a building it already owned, the AIB.”

All of this should sound very familiar. You see, when Congress blocked authorization, and refused to fund the new project, the Smithsonian just found a workaround with an existing site and outside funds.

Who is the Chancellor of the Smithsonian Institution? John Roberts. On the same day that he accused President Trump of bypassing Congress to build a new structure in the Washington, D.C., his own entity bypasses Congress to build a new structure in Washington, D.C. Some chutzpah, huh?

In my essay on the cult of judicial celebrity, I urged Congress to remove the Chief Justice as the Chancellor of the Smithsonian:

As usual, change should start at the top. The Chief Justice serves as Chancellor of the Smithsonian Institution. Why? The Chief Justice lacks any formal training in research or museum management. Why would he hold this position? Chief Justice Roberts recently opined that serving as Chancellor is “the best thing about being the Chief Justice” even though he is the “one person in the room that really doesn’t know . . . what’s involved.” The first Chief Justice to serve as Chancellor was Roger B. Taney, who took over the position after Vice President Millard Fillmore became President. Moreover, in recent times, the Smithsonian has been embroiled in controversies with President Trump. It would make sense for the Chief Justice to step out of this field and any related controversies. Indeed, Congress should modify the law that requires the Chief Justice to serve on the Smithsonian Board of Regents altogether.

Maybe Congress should go further and investigate? Maybe someone who walks past the National Mall should file a frivolous law suit to block any construction of any subterranean annex. If there is standing to see a green crocodile there should be standing to see red bricks. Judge Leon can recycle some of his exclamation points.

Alas, the Woman’s Museum will have to wait. There is no other extant structure where it can be held. Remember, the 15th Amendment came well before the 19th Amendment. The Chief Justice has his priorities.

After some reflection, I think Roberts may have viewed the East Wing construction as an affront to his idealized vision of Washington, D.C. He cares profoundly of how things appear, and was willing to disregard everything he thinks about standing and national security to maintain the appearance of the mall.

I’m done talking about the ballroom–for now at least.