Notes & Comments April 2023
Juiced at Stanford
On the free-speech double standard at Stanford Law School.
In 1966, the sociologist Philip Rieff published his influential book The Triumph of the Therapeutic: Uses of Faith After Freud. Apostles of that triumph, Rieff thought, were like so many “mourners at the wake for Christian culture,” their obsequies a compact of regret and exaltation. Both sentiments had been prominent elements in modern society at least since the advent of the higher skepticism with thinkers like Darwin, Marx, Nietzsche, and Freud. Matthew Arnold (whom Rieff invokes) sounded a decorous elegiac note in this chorus when, in his poem “Dover Beach,” he spoke of the “melancholy, long, withdrawing roar” of the sea of faith. What Rieff called “the therapeutic,” an attitude part sociological, part psychological, was the latest compensatory obeisance to the “unreligion of the age,” whose rituals, though stringent and demanding, had “nothing at stake beyond a manipulatable sense of well-being.”
Our own sense is that Rieff was ambivalent about the triumph he anatomized. As a paid-up progressive academic, he had himself sloughed off the integument of religious belief. He coyly reminds us of that early and often. But he was also impatient of pretension, self-indulgence, and emotional grandstanding, which meant that he regarded “the therapeutic” with a certain wariness, not to say nausea. It is fortunate, therefore, that he died in 2006, before the therapeutic sensibility, already regnant, had devolved into its current state of rancid self-caricature even as it insinuated itself everywhere into the tissues and metabolism of elite academic and professional life.
We thought of Rieff’s description of the therapeutic as a nostrum with “nothing at stake beyond a manipulatable sense of well-being” last month when Stanford Law School brought us the latest eruption of politicized self-indulgence and minatory, unmannerly exhibitionism. Regular readers know that chronicling such spectacles at academic and other cultural institutions has long been a favorite weapon in The New Criterion’s pathologist’s armory. We have covered some doozies over the years—the parade of snowflakes and crybullies unhappy about certain Halloween costumes at Yale in 2015, the extended shouting-down of Charles Murray at Middlebury College in 2017, and countless other specimens of weaponized folly masquerading as wounded virtue.
What happened at Stanford, while in many respects familiar, also introduced some novel elements. The occasion was a talk—well, a scheduled talk—by the Fifth Circuit judge Kyle Duncan. The event was sponsored by the Stanford chapter of the Federalist Society, the venerable legal organization founded in 1982. When we tell you that FedSoc (to use its usual nickname) is dedicated to the idea “that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be,” you will not be surprised that the organization has drawn the ire of progressives across the country, particularly in the academy. Imagine arguing that the judiciary ought to confine itself to saying what the law is instead of endeavoring to make the law! Yes, it’s what the authors of The Federalist and the U.S. Constitution argued, but at least since the time of Woodrow Wilson progressives have wanted to enlist the judiciary in their battle to remake society.
Over the course of his legal career, Judge Duncan, appointed to the federal bench by Donald Trump, has rendered some controversial (read: conservative) judgments, especially on “social questions” having to do with sexuality and marriage. One recent opinion that drew the Left’s particular anger had to do with so-called trans rights. Not only did Judge Duncan insist on referring to the sex offender in question as a “gender-dysphoric” person rather than (the preferred label) “transgender,” he also declined to address him by his “preferred pronouns,” an unforgivable tort among overeducated progressives.
At first, Judge Duncan’s appearance at Stanford Law School unfolded as one might expect. The hundred or so protestors who crowded into the classroom where Judge Duncan was to speak loudly prevented him from doing so. In the days before the event, protestors had plastered the Stanford campus with anti-FedSoc posters. One featured headshots and names of the current Stanford board members of the organization; another had brief caricatures of some of Judge Duncan’s judicial opinions. Both bore the legend “You Should Be Ashamed.” There was more of the same inside the classroom, along with other signs and expostulations whose content, sexually graphic and anatomically precise, is not fit for polite company.
The protestors spent nearly half an hour rudely and obscenely preventing Judge Duncan from delivering his remarks. Eventually, he asked if an administrator were present who could intervene. Jeanne Merino, the acting associate dean of student affairs, was present, but the administrator who stepped forward was Tirien Steinbach, the associate dean for diversity, equity, and inclusion. (How many things had to go wrong, we have often wondered, for an institution to maintain such a position?)
But Dean Steinbach, far from restoring order, was part of the attack. She insisted, over Judge Duncan’s objections, on shunting him aside and delivering prepared remarks from the podium. Prepared remarks, mind, a fact that tended to confirm Judge Duncan’s observation that the whole exercise had been a “setup.”
Dean Steinbach’s aria was an extraordinary performance, evidence of the triumph of the therapeutic and the progress of that proto-totalitarian intolerance that is now de rigueur at most institutions of higher education, especially the most elite. She began, voice tremulous, by declaring how “uncomfortable” she felt because the event was “tearing at the fabric” of the Stanford community. She had to ask, she said, “Is the juice worth the squeeze? Is this worth it?”
Dean Steinbach was clearly enamored of that image, for she pressed it into service repeatedly. And what she meant to ask, it transpired, was whether Stanford’s robust-sounding (but in reality largely ignored) protections of free speech were worth the alleged “harm” and discomfort that someone like Judge Duncan imposed upon the community. “Your advocacy, your opinions from the bench,” she trilled, amount to an “absolute disenfranchisement” of minority rights. This was greeted by the currently favored expression of enthusiastic approbation, the chirruping of snapping fingers.
We note in passing how common has become this deployment of the word “uncomfortable” as a moral accusation. It is part of the same brittle hothouse rhetoric that brought us “trigger warnings” and “safe spaces.” Quoth Dean Steinbach: “I’m uncomfortable and it’s uncomfortable to say this to you as a person. It’s uncomfortable to say that for many people here, your work has caused harm.” More snapping.
“And I know that must be uncomfortable to hear. I know that must be . . .”
Judge Duncan tried to get a word in edgewise: no luck.
“Let me please finish,” Dean Steinbach retorted, flustered, increasingly inconsecutive, but determined to see it through. “I’m also uncomfortable because many of the people in the room here I’ve come to care for, and in my role at this university my job is to create a space of belonging for all people in this institution.”
[I]t doesn’t feel comfortable and it doesn’t always feel safe. But there are always places of safety. . . . I’m also uncomfortable because it is my job to say: You are invited into this space. . . . Because me [sic] and many people in this administration do absolutely believe in free speech. We believe that it is necessary. We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity [!] of people, that one way to do that is with more speech and not less. And not to shut you down or censor you or censor the student group that invited you here. That is hard. That is uncomfortable. And that is a policy and a principle that I think is worthy of defending, even in this time. Even in this time. And again I still ask: is the juice worth the squeeze?
Soon Dean Steinbach said that anyone who wished to leave could do so: “You do not need to stay here if this is not where you want to be.” Naturally, since it was prearranged, as if on cue most of the protestors left the room.
A few lingered for the next scene of the melodrama. Judge Duncan never did get to deliver his remarks. Instead, there was a brief parody of Q&A: really it was thrust, on the part of the future legal eagles, and parry, by the judge. Enlightenment was not on the menu. Hysterical disrespect and calumny were. Eventually, some U.S. Marshals hustled the judge out of the room.
In an interview shortly after the fracas, Judge Duncan described what happened as “a staged public-shaming event.” He was right. It was worthy of what happened in Mao’s China. And it was clearly premeditated. Dean Steinbach was allegedly on hand to keep order. Instead, as Judge Duncan said later, “She did exactly the opposite.”
Instead of explaining to the students that they should respect an invited guest at the law school, . . . even one they might disagree with passionately, she launched into a bizarre (and already printed-out) monologue where she accused me of causing “hurt” and “division” in the law school community by my mere presence on campus. So, this had the effect of validating the mob.
Validating the mob.” At Stanford Law School, one of the best law schools in the country. Indeed, as the legal commentator David Lat wryly pointed out, with respect to its aggressive attack on fairness, civil comportment, and impartiality, Stanford had taken over Yale’s place at the top. Judge Duncan again: “This is a law school, for crying out loud. It’s supposed to be training students to enter a profession where respectful disagreement, even about supremely important things, is the most basic tool of the trade.” And remember, those students, abetted by a woman whose very office is an affront to impartiality, are destined to enter American society at the highest levels. How would you like to be represented by, or appear as a litigant before, people who pride themselves on responding to disagreement with snarling abuse and repudiation?
For its part, the Stanford administration emitted one of those non-apologetic apologies meant to save face without acknowledging responsibility and certainly without admitting to anything like remorse. It wasn’t much of an apology, but that didn’t stop hundreds of entitled Stanford brats from lining the halls of the law school to protest against Jenny Martinez, the dean, for apologizing to Judge Duncan.
What just happened at Stanford Law School marks a new chapter in the disintegration of foundational American institutions. Absent the rule of law, civil society cannot exist. The rule of brute force intercedes. The triumph of the therapeutic mindset does not entirely explain that disaster. But it has provided critical rationalizations and emotional fuel for the victory of a worldview in which law, argument, and reason itself are subordinated to the cold calculus of the revolutionary impulse.
A Message from the Editors
Support our crucial work and join us in strengthening the bonds of civilization.
Your donation sustains our efforts to inspire joyous rediscoveries.
This article originally appeared in The New Criterion, Volume 41 Number 8, on page 1
Copyright © 2023 The New Criterion | www.newcriterion.com