Ill-Judged

Two recent court rulings in the US have caught my attention. Here’s the first:

A federal judge has blocked President Trump from ending the Deferred Action for Childhood Arrivals program, saying the administration’s justification was not “legally adequate.” Under DACA, which Barack Obama created via executive order, young undocumented immigrants who came to the U.S. as children can apply for legal protections.

The judge in Tuesday’s ruling called Trump’s DACA decision “arbitrary and capricious,” and noted that while the administration had claimed that DACA’s implementation by Obama was unconstitutional, Trump’s tweets about revisiting DACA suggested that he thought the president was well within his right to use executive authority this way.

What the judge is effectively saying is that Barack Obama was quite within his rights to implement the DACA program via executive authority, but Donald Trump is not permitted to allow the program to expire using that same executive authority.

Many people, myself included, thought Obama’s use of executive orders to bypass congress set a dangerous precedent, because future holders of the office may not be quite so benign (as if Obama was). Happily, certain judges in the USA have found a solution to this problem by only granting executive authority to presidents they approve of.

This isn’t the first time a judge has blocked Trump on DACA. In January, a federal judge in California ordered the Trump administration to again start accepting DACA renewal applications. Tuesday’s ruling goes farther, saying that the Trump administration must start processing new DACA applications.

This is not ruling on matters of law, this is blatant political sabotage. Note the judge’s references to Trump’s tweet. Since when has the personal opinion of the president been a factor in whether the actions of his predecessor were legal or not? The judge has passed this ruling as a matter of personal preference, confident he will have the backing of millions of people, the law be damned.

Here’s the second ruling:

On Monday, a New York judge awarded $6.7 million to graffiti artists who sued the owner of buildings they defaced because he tore down the buildings.

Federal Judge Frederic Block ruled against Long Island developer Jerry Wolkoff, who had permitted the “artwork” on his property, known as 5Pointz, for decades, stating that Wolkoff was not sorry he had painted over the graffiti in 2013, torn down the buildings in 2014, and begun construction for two 40-story residential apartment buildings in 2015. Block said the penalty he assessed would not have been so exorbitant if Wolkoff had waited for the judge’s permission and demolished the art 10 months later than he did; that would have allowed artists to retrieve their paintings from the buildings.

Apparently graffiti artists have greater rights to a building in New York than the owner.

Block was seemingly impressed with the aerosol artists; in November, during the trial triggered by a lawsuit from the 21 aerosol artists, he gushed abut how works produced by the artists “spoke to the social issues of our times.” He also stated that the “respectful, articulate and credible” artists testified about “striking technical and artistic mastery and vision worthy of display in prominent museums if not on the walls of 5Pointz.”

And there was me thinking judges were appointed to adjudicate on matters of the law, not serve as art critics.

Block said, “Wolkoff has been singularly unrepentant. He was given multiple opportunities to admit the whitewashing was a mistake, show remorse, or suggest he would do things differently if he had another chance. … Wolkoff could care less. As he callously testified.

Why should somebody who has altered his own property, breaking no laws, be repentant?

The sloppy, half-hearted nature of the whitewashing left the works easily visible under thin layers of cheap, white paint, reminding the plaintiffs on a daily basis what had happened. The mutilated works were visible by millions of people on the passing 7 train.”

Apparently the price of paint carries weight in the law. Who knew?

Block also asserted, “The shame of it all is that since 5 Pointz was a prominent tourist attraction, the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time. It would have been a wonderful tribute for the artists that they richly deserved.

Okay, that’s enough of that.

In recent times we’ve heard western journalists and politicians express outrage over judges being “replaced” wholesale in places like Russia and Turkey, particularly after they’ve thwarted some nefarious government scheme or other. In many parts of the world, the idea that a judge is some impartial arbitrator of the law and not just some servant of the ruling classes is preposterous (the Russian film Leviathan made this point rather well). This is why the outrage over judges being replaced is often more muted in the country concerned; the people simply view it as another round of shuffling the political pack. But westerners get all hot under the collar because they think judges are above politics, and serve as an an essential restraint on politicians’ actions.

The two rulings I refer to above suggest the USA might be well on its way to becoming more like the third-world than a beacon of law and order. To be honest, this is probably nothing new: the Supreme Court’s decision over gay marriage was a naked display of judges deciding not what the law actually said, but what they thought progressives wanted it to say, something that Antonin Scalia captured rather well in his dissent. We also had the pantomime last year of regional judges declaring Trump’s immigration policies unlawful, using bizarre and unprecedented justifications.

The one thing that prevents American judges being replaced in the manner they are in much of the world is the preservation of the notion that they are disinterested arbiters of the law and not engaged in politics or activism. For whatever reason, some of their number seem rather keen to demonstrate otherwise. I don’t know how deep this runs, but I think we’re already in dangerous waters. If my mythical despot should seize the reins of power, he will likely waste no time sacking judges likes these in large numbers, and a whole load of others to boot. The problem is, the current actions of these so-called judges will make such a move reasonably easy to justify. Wherever this is leading, it won’t end well.

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21 thoughts on “Ill-Judged

  1. We hear that Trump is “literally” Hilter.

    How would Hitler have reacted to the revelation that the outgoing administration used flimsy evidence to spy on him while in opposition and then considered withholding intelligence from him after winning the election?

    For a more recent compare and contrast opportunity, have a look at Turkey.

  2. Egregious as these rulings are, they are by judges in lower courts. Far more concerning, as an illustration of the rot, is the recent interview with Ruth Bader Ginsburg, an actual Supreme Court judge, on the reasons for Hillary’s defeat: sexism. Obviously. That she can be so overtly partisan against Trump doesn’t bode well; especially as Chief Justice Roberts doesn’t seem to be in any hurry to slap her down.

  3. >The two rulings I refer to above suggest the USA might be well on its way to becoming more like the third-world than a beacon of law and order.

    The USA? What about the UK? Its higher courts are full of socially activist judges increasingly bending the rules.

  4. “The two rulings I refer to above suggest the USA might be well on its way to becoming more like the third-world than a beacon of law and order.”

    Dissent.

    In the first case, the order is going to be overturned. The appeal has already been filed. The judge’s order will delay things until the expedited appeal is heard, but we have an appellate process that’s frequently used to right incorrect rulings, and delay is an unavoidable aspect of it. The process will work.

    (I note that the judge, at the hearing on the request for injunction, commented that the government cannot come to court and request heartless relief (paraphrasing, but the word heartless was in it, IIRC), humorously enough telegraphing that he was going to rule, based on his emotional opinions, that Trump cannot make rules based on his emotional opinions.)

    In your second example, the failure does not lie with the court’s ruling. Through the democratic process, the state had passed a (stupid) law that said that graffiti was art, and that property owners who suffered from graffiti of some vague quality had to allow taggers to (non-destructively) reclaim and take away their art if they wanted to do so. Again, stupid, but lawfully passed.

    The property owner basically said FU to that law, even though he was already under a court order NOT to destroy the graffiti before the artists could reclaim it. He knew about the law, and had had more than enough time to have allowed the taggers to come on his property and remove the “art” before he destroyed it.

    Think of this ruling as “no, you cannot violate existing law and a specific court order directed to you.”

    So, I think our legal processes remain unthreatened by either of these orders. But then, I’m an optimistic lawyer, so my thoughts on this are suspect already.

  5. There are two solutions to the legal graffiti issue. The first is for all property-owners to declare their buildings “works of art”. Then the spray-can vandals will be the ones damaging the art, and the judges can amuse themselves by talking about aesthetics.

    The second is for property-owners to declare their painting over graffiti a form of art. If Jake and Dinos Chapman defacing original Goya prints is art, then so is whitewashing over unwanted graffiti. The spray-can artists can think of themselves as contributing to an endless process of artistic referencing and incremental improvements.

  6. bobby b

    I am prepared to defer to you on those and it’s not as if we haven’t got ideologically motivated judges here in the UK. Where US justice, in my opinion, really fails is in the vile and corrupt plea bargaining in criminal cases. A bigger incentive for prosecutors to throw mud at the wall and see if it sticks doesn’t exist. The defendant is left with the invidious choice – although gamble would be a better word – of choosing to fight a process rigged against him, with very high penalties attached, or succumb to blandishments of a minimised sentence for an agreed guilty plea. There is a reason why the US has such a massive conviction rate.

    And that’s not even to go into the whole ‘perp walk’ and ‘the process is the punishment’ disgrace.

  7. The idea that the US was ever “a beacon of law and order” is good for a chuckle. Mainly it thrived as a beacon of cheap or free land, and a beacon of a central government that wasn’t very powerful.

  8. In the first case, the order is going to be overturned. The appeal has already been filed. The judge’s order will delay things until the expedited appeal is heard, but we have an appellate process that’s frequently used to right incorrect rulings, and delay is an unavoidable aspect of it. The process will work.

    I’d still say that having lower-court judges ignoring the law in favour of political activism, and justice relying on a higher court overturning it, is a pretty shit state of affairs.

    In your second example, the failure does not lie with the court’s ruling.

    I take your point, but the judge didn’t appear to be reluctantly ruling against a stupid law; he was gleefully acting as an advocate for the artists. This isn’t good, is it?

  9. And that’s not even to go into the whole ‘perp walk’ and ‘the process is the punishment’ disgrace.

    I once read that the perp walk is done so the police cannot be accused of dragging people away in bread vans in the middle of the night. Anyone know if this is true? I fully agree with you on the plea bargaining, it’s an absolute disgrace.

  10. What about the UK? Its higher courts are full of socially activist judges increasingly bending the rules.

    Probably, but it was the two American rulings that leaped out at me.

  11. >There are two solutions to the legal graffiti issue. The first is for all property-owners to declare their buildings “works of art”.

    I wouldn’t do that. Then you’ll find the government will stop you changing it in any way, and will eventually force you to hand over your house to the state, because it’s an artistic work of significance, or something like that! 🙂

  12. Again, stupid, but lawfully passed.

    Dissent from your dissent. The SCOTUS may have ruled in Kelo vs. New London that the state may arbitrarily deprive a citizen of their property and grant it to another, but that’s so blatantly obviously a violation of eminent domain that nobody tries to argue it was a correct decision.

    Then you’ll find the government will stop you changing it in any way, and will eventually force you to hand over your house to the state, because it’s an artistic work of significance

    This already happens in the case of “historically significant” buildings or properties.

  13. “The property owner basically said FU to that law, even though he was already under a court order NOT to destroy the graffiti before the artists could reclaim it.”

    Gee, why would he ever say FU to a law and judge that put the rights of vandals over his property rights?

  14. Living between the two countries I have always been aware that falling foul of the law was not something I would have wanted to happen in the U.S. it’s a system that grinds finely extracting the maximum amount of cash for little result.

  15. “The sloppy, half-hearted nature of the whitewashing left the works easily visible under thin layers of cheap, white paint, reminding the plaintiffs on a daily basis what had happened.”

    This is a work of art, and a statement, in it’s own right that has every bit as much merit as art as the original works.

    You can even step back a bit more and see the whole process as a journey in art. Productive building > decay > subversion > reclaiming, and finally, renewal.

    Only a barbarian would be incapable of appreciating that not all art exists for preservation in aspic, but is rather a living and organic process.

  16. ” Where US justice, in my opinion, really fails is in the vile and corrupt plea bargaining in criminal cases.”

    Cannot disagree. It’s hard to tell a client to take a case to trial when the state’s offer is for three months, but if he’s found guilty at trial he’ll get 18 months. Realistically, though, if every crim defendant demanded a trial, we would need to redirect our entire GNP to the court system. Or we’d need to start wiping out criminal statutes (which would be my first choice – way too many – but try getting the votes for such a thing.)

    A friend of mine is a prosecutor. His interesting response to the argument is that the legislatures set the penalties for crimes, and the fact that so many defendants feel compelled to take plea bargains is because prosecutors are offering deals that are too good. In my example above – offer of 3 months, or 18 month sentence if found guilty at trial – is the problem that the 18 months is too high, or that the 3 months is too low? People disagree on this.

    ” . . . the judge didn’t appear to be reluctantly ruling against a stupid law; he was gleefully acting as an advocate for the artists. This isn’t good, is it?”

    Normally, I’d agree. But my understanding is that this same judge had earlier issued a preliminary order that the property owner do nothing to the “art” until the actual hearing could take place, and the owner, who was properly served with that order, ignored it.

    That’s contempt of court, which most all judges I know take very personally. I didn’t read his order as advocating for the artistes – I read it as saying “don’t ever fuck with ME, little man.”

    “Dissent from your dissent. The SCOTUS may have ruled in Kelo vs. New London that the state may arbitrarily deprive a citizen of their property and grant it to another, but that’s so blatantly obviously a violation of eminent domain that nobody tries to argue it was a correct decision.”

    But this wasn’t a takings case. No one argued that it was. This was a pure regulation case. The statute says that, once the artistes go through some process and get their art approved and registered as fitting the requirements of the statute, they get to get notice before it’s destroyed, and can ask for reasonable time to remove it. The owner didn’t try to prove that this delay was costing him any money or opportunity – it sounds more like he was simply thumbing his nose at the artistes (whom he hated) and the judge who issued the original order starting the process.

    I think this story got written up very badly in the press – it’s hardly the “egregious government overstep” situation they make it sound like. I still think the law allowing vandals to claim some right to their “art” sprayed on someone else’s property is stupid – I think you forfeit whatever right you might have to “art” when you spray it on someone else’s property – but this case is simply a regulatory case, just like the historic preservation process you mention in your comment.

  17. But this wasn’t a takings case. No one argued that it was. This was a pure regulation case. The statute says that, once the artistes go through some process and get their art approved and registered as fitting the requirements of the statute, they get to get notice before it’s destroyed, and can ask for reasonable time to remove it.

    And that’s just as much a violation of the Constitution’s guarantee of the right to personal property as New London, CT seizing Suzanne Kelo’s home and giving it to a drug manufacturer because reasons.

    It doesn’t matter if the artists jumped through a bunch of regulatory hoops. The regulation is prima facie unconstitutional.

  18. That’s contempt of court, which most all judges I know take very personally. I didn’t read his order as advocating for the artistes – I read it as saying “don’t ever fuck with ME, little man.”

    Fair enough. I sort of agree with Daniel, though.

  19. The thing is Tim both are right.

    The aw appears unconstitutional on its face, but that’s an argument for court not a bulldozer.

    The US is meant to be a nation of laws and contempt of court should be dealt with harshly.

    I live in Oz, and I am extremely angry that Muslims don’t regularly get held in comptempt for refusing to remove head coverings and rise for he court.

    (The reason for removing head coverings, is that individuals have got off, obstruction, pervert and perjury charges because the crown can’t prove that it was them giving testimony under oath.)

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