Do We Have a Two-Tiered Justice System?

You bet, but not in the way you're being told.

One of the most frequently aired complaints I’ve heard in criminal justice debates is that we have a two-tiered justice system. Liberals assert that, because America is a racist cesspool (they mostly use more polite language, while making clear that this is what they mean), blacks, and often “the poor” — we always need to throw in “the poor” — wind up in prison far more frequently than middle-class whites.

And it’s true that blacks are, proportionately, a much higher share of the prison population than whites. According to this Pew report, blacks make up 12% of the general population but 33% of the prison population, while whites, at 64% of the general population, are 30% of the prison population. In other words, blacks, though less than a fifth the number of whites, actually outnumber whites among inmates. That is a huge disparity by any reckoning.

Still, as liberals are quick to tell us (when it suits them), correlation is not causation. Does the fact that blacks are far more frequently imprisoned than whites mean that racism is the cause behind it?

Let me ask that another way. Does the fact that people in their twenties are far more frequently imprisoned than people in their sixties mean that ageism (that is, society’s putative bile towards young people) is the cause behind it?

Does the fact that men are far more frequently imprisoned than women mean that sexism (that is, society’s putative bile toward men) is the cause behind it?

Of course it’s so much baloney. The reason each of these groups — younger adults, men, and blacks — is in prison grossly in excess of their representation in the general population is behavior, not identity. As a statistical matter, each of those groups commits the kind of offenses that get you sent to prison, often offenses involving violence, much more frequently than the general population. As long as this is the case (but not for a minute thereafter), they should be in prison in disproportionate numbers. Prisons are not supposed to be “representative” places — meaning that the ubiquitous complaint about identity-group “disparity” ranges in persuasive punch somewhere between misconceived and preposterous.

Relatedly: A favorite liberal mantra these days is that Institution X should “look like America,” the dark implication behind it being that, if Institution X does not look like America, racism or something similarly malign is the reason. The range of institutions to which this scolding gets applied is quite something: the Supreme Court and prisons (think about that for a minute); the Academy Awards; the cast of Broadway shows; your tennis club (but cf. Sen. Sheldon Whitehouse); and, of course, colleges.

But it’s all nonsense, designed to give currency to the notion that, in handing out society’s benefits and burdens, how you look is central and how you behave is somewhere over there. A society that buys this line, that intentionally and relentlessly devalues counting the behavior of its citizens in order to go bonkers over their identity, is going to get a lot of identity (and identity fakes) and even more bad behavior. You don’t have to be a genius to figure out how successful such a society is going to be competing with those that put productive behavior first.

But I digress. My original question was whether we have a two-tiered justice system. What I’ve argued up to now is designed to show that the typical complaint about such a system is mostly just ignorant, if at this late date shopworn, identity wallowing. But there is a way in which, absolutely, we have a two-tiered system. Let me summarize it in one sentence: If you’re a liberal Democrat in open defiance of law, including Supreme Court law, you have nothing to worry about, but if you’re anyone else, watch out.

This has nothing to do with the seemingly spectacular difference in treatment between Hunter Biden and Donald Trump. That is its own issue with its own complications; I hope to get to it in later posts. Instead, it’s more mundane yet, over the long haul, more corrosive than that. It’s the treatment that’s been given the Left’s open defiance of two recent Supreme Court decisions, one banning consideration of race in college admissions, and the other holding illegal President Biden’s plan, launched without Congressional authorization, to fork over half a trillion taxpayer dollars to pay off student loans.

Let me take the “loan forgiveness” plan at the outset. First, I should note its deceitful wording. Nothing is being “forgiven.” The loans are being paid back, but by the taxpayers (that would be you), not the people who did the borrowing. However you look at it, this plan is not just misguided but repulsive, as I have argued. My focus here, however, is on President Biden’s reaction to the Court’s judgment holding that his plan was an unconstitutional (i.e., illegal) usurpation of spending power reserved to Congress.

Was his reaction, “Oh, well then, I’ll go to Congress to get it approved. I regret overstepping my boundaries.”

Not hardly! Only Republicans need to apologize. Instead, Biden’s reaction, nicely summarized by the Washington Post, was this:

When the Supreme Court ended the Biden administration’s student loan forgiveness program last month before it even got started, President Biden made a big promise: “We’ll use every tool at our disposal to get you the student debt relief you need.”

On Friday, the Education Department announced it would forgive loans for more than 800,000 borrowers, many of whom enrolled in a program to pay back loans for 20 years, then have the remainder forgiven.

That’s a fraction of the more than 40 million Americans who could have seen their loans wiped out or reduced under Biden’s original plan. (This is actually part of a series of relief efforts previously announced by the Education Department.)

But Biden likely feels pressure to do something. Starting in the fall, most people will have to start paying their student loans back after a three-year reprieve from the pandemic. Student loan debt is an especially pertinent issue for younger voters, who hold the most debt. And younger voters are an important constituency for Biden’s reelection.

I congratulate the Post for that last sentence, saying it out loud: “… younger voters are an important constituency for Biden’s reelection.” This is a wonderfully candid confession of the real reason for this program: It has zip to do with “providing opportunity” and all that sort of thing — something that for generations young adults did for themselves by working and saving and similarly bourgeois stuff. Nope. Biden is just using government money to try to buy the youth vote.

But wait, there’s more! The President isn’t going to be content with merely this relatively modest payoff. Instead, he’s planning a nearly half-trillion dollar program as big as the first, illegal plan, but with a few parts re-arranged and different lipstick painted on it. As Fox reports:

President Biden's revamped student loan forgiveness plan will cost U.S. taxpayers $475 billion over 10 years, according to an analysis released Monday.

The University of Pennsylvania's Penn Wharton budget model updated its estimate for Biden's plan--dubbed SAVE--this week after the Supreme Court struck down the initial plan.

"About $200 billion of that cost will come from payment reduction for the $1.64 trillion in loans already outstanding in 2023. We estimate that about 53 percent of the current loan volume will move to SAVE after it goes active in July 2024, implying that about $869 billion will be subject to enhanced subsidies under SAVE," the group wrote.

"The remainder of the budget cost, or about $275 billion, comes from reduced payments for about $1.03 trillion in new loans that we estimate will be extended over the next 10 years," it continued.

If we had something resembling an independent press, it would be demanding that Biden simply go to Congress to legally create the loan “forgiveness” program the Court found unlawful, rather than just re-arrange it behind some administrative razzle-dazzle. Instead, what we have is — how shall I say this? — a two-tiered justice system. This is a system in which a Democratic administration gets caught grossly violating the law, blowing past important constitutional limits, and then, when corrected by the Court, just keeps on keepin’ on, never acknowledging its error, never being punished for it, never taking a step back.

Is this the reaction Trump would get? Or Bush? Or Cheney?

Again: Do we have a two-tiered justice system?

Of course it’s all of a piece with the administration’s enthusiastic legal and financial support for the racist and — more to the present point, unlawful — system of college admissions that sends white and Asian applicants to the back of the line in favor of less accomplished minorities (but minorities the administration views as politically more dependable).

When the Court held that these admissions programs were illegal, what was the response?

In a different world, it would have been: “We regret devaluing applicants simply because of race. We understand that this was illegal and at odds both with the specific language of the Constitution and the values the Constitution seeks to advance. We will correct our mistakes, and energetically chart a new course consistent with the law.”

As Paul noted in his piece “Harvard and Dartmouth promise to keep discriminating on the basis of race,” this is what we got instead (Harvard version; emphasis by Paul):

Today, the Supreme Court delivered its decision in Students for Fair Admissions v. President and Fellows of Harvard College. The Court held that Harvard College’s admissions system does not comply with the principles of the equal protection clause embodied in Title VI of the Civil Rights Act. The Court also ruled that colleges and universities may consider in admissions decisions “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” We will certainly comply with the Court’s decision.

We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday. So too are the abiding values that have enabled us—and every great educational institution—to pursue the high calling of educating creative thinkers and bold leaders, of deepening human knowledge, and of promoting progress, justice, and human flourishing.

We affirm that:

• Because the teaching, learning, research, and creativity that bring progress and change require debate and disagreement, diversity and difference are essential to academic excellence.

• To prepare leaders for a complex world, Harvard must admit and educate a student body whose members reflect, and have lived, multiple facets of human experience. No part of what makes us who we are could ever be irrelevant.

• Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed.

For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent. In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.

The heart of our extraordinary institution is its people. Harvard will continue to be a vibrant community whose members come from all walks of life, all over the world. To our students, faculty, staff, researchers, and alumni—past, present, and future—who call Harvard your home, please know that you are, and always will be, Harvard. Your remarkable contributions to our community and the world drive Harvard’s distinction. Nothing today has changed that.

Let me summarize that for you: “Harvard to Supreme Court: Drop Dead.”

In a single-tiered justice system, losing litigants take their medicine, then change course in substance, not just appearance. So yes, those running things on the Left are correct. We don’t have a single-tiered justice system. Certainly not for them.