Marketing The Least Dangerous Branch

Have you ever wondered why a sneaker named after Michael Jordan costs between $150 and $500? Is there platinum in the sole? While they’re worn by people of all colors, they’re particularly prized by black kids, for whom sneakers have long held special status, and so Nike has milked them for all it could for a pair of sneakers that do not guarantee you’ll be drafted for the NBA or suddenly become inexplicably attractive to others.

Yet, at this moment of racial obsession, Nike stands with its customers, even if it hasn’t reduced the price of its sneakers. That’s what it means to fight “systemic racism,” which is great since people keep saying that phrase without any clue what it means, whether it’s real or what to do about it.

If after reading the 10th (or 50th) pledge of corporate solidarity with the anti-police-brutality protests your eyes are hurting from rolling so much, you’re not alone. Nike? Check. Netflix? Check. Peloton? Check. The revolution has been focus-grouped

“Together we stand,” Amazon says, in stark white letters against a somber black background, “against systemic racism and injustice.” Great to hear.

Jesse Wegman appreciates the irony of how facile it is to say what plays and pays when it doesn’t actually accomplish anything other than sell more Air Jordans. But it’s not just marketeers getting into the game.

So it has been striking to read the growing stream of anguished public statements in recent days coming from another, unexpected source: chief justices at the highest state courts across the country, often joined unanimously by their colleagues.

While judges rarely speak out on issues of public concern, as it exposes them to claims of bias when a case comes before them, there’s little risk in decrying racism, injustice and inequality. After all, what judge claims to be racist, unjust or unequal? These are such obvious virtues that there could be no rational challenge mounted against them. What they serve to accomplish is creating the sense that courts, long the tool of the establishment against the individual, “hear” and acknowledge that they haven’t been particularly sensitive toward guys wearing Air Jordans, and promise to do better.

As Jesse notes, North Carolina Supreme Court Chief Justice Cheri Beasley, who is black, female, and, if identitarian assumptions are correct, should have been the mother lode of racial and gender empathy, has spoken out for the cause.

“It is shocking to see our workplaces, businesses and community spaces damaged,” she said of the rioting and looting in cities like Raleigh and Charlotte. And yet “we must decry the failures of justice and equity just as forcefully as we decry violence. It is not enough to say to protesters ‘go home and follow the rules.’ It’s not that simple.”

No, it’s not that simple. So how simple is it? How complex is it? What exactly does she plan to do about it? What are those “failures of justice and equity” she speaks about? Is this about paying lip service to the flip side of rioting and looting? Is this about maintaining the legitimacy of the judiciary when it’s part of the systems under attack without actually admitting any particular error or doing anything substantively different?

From policing to prosecution to jury selection to incarceration to parole and probation, the evidence of disparate treatment of black people in the criminal-justice system is overwhelming and irrefutable.

Disparate impact and disparate treatment are often confused by the unwary, as is their significance. Disparate impact isn’t proof of racism, but rather gives rise to a rebuttable presumption of racism because proof of racial animus is often hard to identify and so the Supreme Court in the 1971 case of Griggs v. Duke Power held that it’s fair to presume that in the absence of racism, there would be no disparities. When disparities appear, it’s sufficient to shift the burden to disprove that they are the product of racism. But how does a court do that?

Perhaps Jesse was pondering this question when he turned to criminal defense lawyer renown legal theorist respected attorney guy who couldn’t find a courthouse without Google maps former legal pundit at ThinkProgress (before it failed) and now Vox, Ian Millhiser, for deep thoughts.

“I want to see what decisions they hand down,” said Ian Millhiser, a legal analyst at Vox and the author of “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.”

Well, don’t we all want to see what decisions they hand down?

Unfortunately, Chief Justice John Roberts, backed by a now-solid conservative majority, has exhibited a conception of race in America that is, to put it gently, naïve. In a 2007 school-desegregation case, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

On the one hand, of course it’s naive, as is every such expression of virtue. On the other, is there something offensive about it? Ian says “yaaasss.”

Mr. Millhiser rejected that logic: “There are problems in society that you can’t get your head around unless you realize that many of the people affected by them are black or brown. Trying to solve racial problems when you can’t acknowledge race is like trying to write a novel without using the letter ‘e’. You’re going to achieve a much better result if you’re allowed to talk about the thing you’re talking about.”

Ian has mad analogy skillz, but what the hell is he talking about? Identify a specific problem that unfairly affects black and brown people and why, specifically, it’s racist. Then do the serious work of explaining what can be done about it other than let people commit crimes without consequence based on race. Is Ian arguing that black guys should get one free crime as reparations for systemic racism? Should sentencing laws provide for mandatory minimums for white dudes but not brown?

We’re awash with corporations marketing empathy to sell $500 sneakers to kids who can’t afford $500 bail, and they can’t come up with a single, hard, cognizable thing to fix? Maybe those deeply empathetic folks trying to solve racial problems in the legal system would do better to talk nuts and bolts than meaningless vagaries of “systemic racism” and whether Ian can use the letter “e” in his next best seller.

4 thoughts on “Marketing The Least Dangerous Branch

  1. Kathryn Kase

    Hmmm, for a start, I’d be happier if. . .judges would sustain objections and then issue contempt citations against prosecutors who use the words, “animal,” “monster,” and “inhuman” to describe my clients of color; judges would eliminate the double standard in which white clients with “good” upbringings deserve a second chance, while clients of color with “good” upbringings deserve punishment “as a warning”; judges, bailiffs, and court clerks who speak as patiently and kindly to my clients of color as they do to the white defendants in the courtroom; judges who appoint the best appointed lawyer to defendants of color, instead of the guy who “meets ‘em and pleads ‘em” and knocks back more than $300k annually on the public, ahem, teat and, somehow, is never found ineffective for failing to investigate.

    And one other thing: stop using “justice” in the names of criminal courthouses and prison systems. As one of my clients observed, whatever happens in both those locales, for people of color it ain’t justice.

    1. SHG Post author

      Lots of nuts and bolts in here, although the words before the ellipsis would have been best left out.

  2. Hunting Guy

    Ambrose Bierce.

    “Even the laws of justice themselves cannot subsist without mixture of injustice.“

Comments are closed.