Keep Social Justice Out of the Courtroom

Hi,  

Before I unload some vituperation, let me dole out some nuance.

I think Derek Chauvin was guilty and got what he deserved, even though I think reasonable people can argue about the second-degree murder charge. In other words, I think it’s obvious that he’s guilty of second-degree manslaughter and third-degree murder (you can read the different definitions here). I also think he’s guilty of second-degree murder, but I think this is ‘less’ obvious and therefore more debatable. Hence I would not have been outraged if the jury didn’t convict on that count. Therefore while I am happy to debate the merits of this position, I have little patience for the effort to make Chauvin into a martyred victim to mob rule. It may have been wrong on some technical level to convict him of second-degree murder (again, I don’t think so)—I just find manufactured outrage that boils down to, “Our legal system has been corrupted because he was merely guilty of third-degree murder!” to be some weak sauce.

So I’m glad he got convicted. But I’m dismayed by the sound and fury the verdict has elicited among the loudest and the professionally furious.

Justice, social justice, and injustice.

Some (not all) people on the left were all-too-eager to spin the verdict as something like a distraction. Focusing on Chauvin as “one bad apple” in the Minnesota police lets the “system” off the hook, goes the thinking. Some even think it was outrageous for prosecutors to focus on the “bad apple” argument in their closing arguments, as if it was some kind of dereliction of duty not to put the system on trial. I get the desire, but if the goal is to get a conviction, putting the system on trial is a recipe for acquitting the actual person charged with wrongdoing. That would be the real dereliction.

MSNBC went to Jason Johnson for the first reaction to the verdict. He responded, “I’m not pleased, I don’t have any sense of satisfaction, I don’t think this is the system working. I don’t think this is a good thing.” Why? Well, you can listen to his fuller response, but the gist was that this shouldn’t have happened in the first place.

Well… yeah. That’s why Derek Chauvin was convicted.

Keith Ellison, the attorney general of Minnesota, went to a microphone right after the verdict. “I would not call today’s verdict ‘justice,’ however, because justice implies true restoration,” Ellison said. “But it is accountability, which is the first step towards justice. And now the cause of justice is in your hands.”

I get the point. But by this standard, there is no justice, ever, when a murderer is tried and convicted. This means that in murder cases—and many others—we should never say the culprit was “brought to justice.” We should say that they were “brought to accountability.”

I don’t mean to dwell on semantics here, but semantics have become the coin of the realm. Ellison, like so many others, subscribes to a definition of justice that falls under the rubric of social justice. I can write at great length (again) about the problem with the concept of social justice. But I’ll cut it short: Social justice is Calvinball for politics. It is an abracadabra word people use to justify the pursuit of power. Its elasticity makes the current uses and abuses of “infrastructure” seem scientifically precise.

The concept of social justice is bad enough in politics. Bringing it into criminal trials may not be evil in intent, but it would be evil in result. “[O]nly situations that have been created by human will can be called just or unjust, “ Friedrich Hayek observed. In other words, you can only hold individual people accountable for what they did or didn’t do.

Indeed, the whole argument of the Black Lives Matter movement unwittingly pays homage to this point. It is wrong for a policeman to see one black person and presume they are guilty of or complicit in the misdeeds or crimes of some other black person. There is no transitive property between one person committing a crime and another person being guilty of nothing other than superficially looking like that person. That’s the very racism BLM rightly decries. By the same token, however, no police officer is culpable for what another police officer has done.

Whatever you make of various claims about “systemic racism,” they have no place in a murder trial of a police officer any more than various claims about “black crime” in a trial of an individual black citizen. Our whole judicial system is grounded on the hard-won principle that the accused are culpable only for the alleged crimes they committed—and that can be proven by marshaling legitimate evidence relevant to their particular case.

Trials that drag in concepts of “the greater good,” that float sinister and unproven conspiracies, or that assume guilt before they even begin are close to the definition of show trials.

In the hours after the verdict—and in the years prior to it—this cornerstone of real justice has been disregarded by journalists and politicians. For instance, a police shooting in Columbus, Ohio, was instantly greeted as proof of, well, a lot of things about systemic racism. We can wait for all the facts to come out—or even for a trial—before reaching a final conclusion.

But it is already glaringly obvious that these are different situations. A cop who shoots someone poised to plunge a knife into another human being—whether fully justified or not—is not the same thing as a cop 720 miles away putting his knee on the neck of a handcuffed man who has been unconscious for four minutes. But even if new facts—or political pressure—lead to the Columbus cop being prosecuted, it would be outrageous for a prosecutor to start talking about Derek Chauvin.

This is a principle that has—or should have—no partisan valence.

Transitive tensions.

But it does, everywhere. The transitive property of social justice rules our discourse. Of course, the right doesn’t use the term “social justice,” in the same way the nationalists don’t use the term “socialism” to describe their industrial policies, because those are the shibboleths of the other team. (As David French says, “common good” is now “rightspeak for social justice.”) But the argumentation still assumes that one wrong by them justifies another by us. 

How many people on the right spent the last five or 10 years insinuating—or shouting—that the crimes of one illegal immigrant indict all illegal immigrants? Or that the actions of a handful of Muslims reflect on all Muslims? Collective guilt or innocence—whether ascribed to blacks, Jews, whites, Muslims, immigrants (legal and illegal), men, women, gays, Hispanics, or the United States of America itself—is the beating heart of social justice thinking.

When you think in such terms—”our team is good, their team is evil”—it’s child’s play to “prove” that you’re right, because you can always cherry pick examples of the worst aspects of the other side and proclaim them representative of it in its entirety. And if good examples aren’t forthcoming, bad examples will do just fine when you can ascribe the actions of the members of any other team besides yours to bolster your case.

This explains much of the endless cycle of hypocrisy-policing and whatabouting that so many politicians, pundits, and news outlets live on. How many times have you heard the January 6 assault on the Capitol justified by whatabouting Antifa, or BLM violence in Portland and elsewhere? There are differences between these things. The only thing that unites them all is the presence of immoral, unjustified violence—and the teams that either excuse or condemn them.

I think President Joe Biden’s and Rep. Maxine Waters’ comments before the verdict were indefensible. When I criticized Biden on Twitter, the inevitable response came: “Trump did the same thing!” Yes, he did (though not the exact same thing). And I criticized him for it. But even if I didn’t, that doesn’t make Biden right, does it? Either violating norms is wrong or it’s not. When Maxine Waters unloaded her bilge, here’s how CNN described it: “Democratic Rep Waters exposes GOP hypocrisy and hands conservative media a way to avoid discussing race and policing.”

I confess, I’m not immune to the gravitational pull of doing the same thing. When Kayleigh McEnany of all people says, with a straight face, that presidents shouldn’t “inflame” racial passions, she’s being so mind-wrenchingly hypocritical and opportunistic it’s almost impossible not to pull out the “What About Trump?” mallet. 

But that’s the problem with this miserable time: It’s a constant struggle not to be seduced by it.