The Washington PostDemocracy Dies in Darkness

Opinion Here’s what was really going on in the fracas at Stanford Law

7 min

An earlier version of this op-ed misidentified the institution with which the Mill Institute is associated. It is UATX. This version has been corrected.

Ilana Redstone is an associate professor of sociology at the University of Illinois at Urbana-Champaign and the faculty director of the Mill Institute at UATX.

The photo shows a student in a light pink sweatshirt, “Outlaw” written on it in rainbow letters. The student yells into a megaphone and has the phrase “trans rights” drawn on one cheek. The image could be from any of a number of campus protests from the past several years — but this particular one was captured at Stanford University, during recent turbulent events at the law school.

The protesters were responding to the fact that Judge Stuart Kyle Duncan, who sits on the U.S. Court of Appeals for the 5th Circuit, had been invited by the school’s chapter of the Federalist Society for a talk on “Covid, Guns, and Twitter.” The Stanford Daily reported that the protesters’ fliers had criticized Duncan as “a right-wing advocate for laws that would harm women, immigrants and LGBTQ+ people.”

We could dismiss the protest as just another example of campus intemperance. But because this confrontation was so deeply indicative of the appalling state of our national political conversation, it’s worth pausing to understand what was going on.

George F. Will: Expensively credentialed, negligibly educated Stanford brats threw a tantrum

The protesters’ objection to Duncan was grounded in certainty. What I mean is, their justification for condemning an opposing position came from a value, principle or belief they held as inviolable. The tendency to treat our beliefs this way comes from something I call the Certainty Trap. It is what gives us the satisfying sense of righteousness we need to judge harshly, condemn and dismiss people with whom we disagree.

To be sure, it’s worth separating the two words. Specifically, not all certainty is a trap. I am certain, for instance, that I’m sitting in my living room typing this piece. It’s theoretically possible that someone put LSD in my oatmeal this morning and I’m experiencing an elaborate hallucination, but the probability is infinitesimally small. And this certainty doesn’t lead me to condemn anyone’s character.

However, when it comes to heated political debates, the Certainty Trap holds us back and puts up walls. Paradoxically, those issues where we feel most threatened by disagreement are the ones where we most need to be able to talk with one another.

Unsurprisingly, most people don’t want to engage with people they’ve judged as morally deficient, and most people don’t enjoy being judged as morally deficient for having the “wrong” opinion on a contentious issue.

The sentiment behind the Stanford Law School protesters’ opposition to Duncan is perhaps best captured in a well-known quote often attributed to James Baldwin. It goes: “We can disagree and still love each other, unless your disagreement is rooted in my oppression and denial of my humanity and right to exist.”

This quote is usually brought up in the context of explaining the limits of when or how we should allow for a diversity of viewpoints and talk with people who disagree with us. As in, we can disagree, as long as this — what’s described in the quote — isn’t the case.

It’s a powerful statement. It’s a way of standing firm in who one is and refusing to diminish one’s self-respect for anyone or anything. In other words, there’s good reason the quote resonates.

But as powerful as they are, Baldwin’s words assume a simplicity that works only within the Certainty Trap. For instance, is it really the case that our only two choices are to disagree and love each other, or to shout at each other and walk away? There’s a deeper question, too: How do we know when someone’s disagreement is rooted in “oppression” or a denial of one’s “humanity and right to exist”?

George Will

counterpointExpensively credentialed, negligibly educated Stanford brats threw a tantrum

The quote and the sentiment paper over the fact that the things we care about the most tend to be morally and ethically complicated. A natural question is: Does avoiding the Certainty Trap mean I have to treat all ideas as equally acceptable? No. It just means they are all subject to questioning.

Let’s go back to Duncan for a moment. According to Slate, he once “wrote a cruel, petty opinion misgendering a trans litigant while mocking the very notion of gender identity and preferred pronouns.” So, is Duncan transphobic? Maybe. But is there any other possible explanation for his stance that does not include “he means to oppress us”? I am guessing that, to many of the protesters, the answer is no. This is where certainty has trapped them.

To be clear, there’s no excuse for Duncan’s mockery. But a more productive mode of discourse for the protesters would have been to ask him to clarify the thinking behind his positions and then challenge it. When it comes to gender, here are a few questions that come to mind: What is the relationship between biology and gender? Should we decouple gender from sex? When it comes to pronouns, what is the “right” way to think about our social identities? Is it reasonable for us to each decide for ourselves how we want to be viewed? Or is identity more of a social negotiation, partly determined by how I see myself and partly determined by how others see me?

The point isn’t to argue over whether this is what Duncan actually had in mind. It’s to understand that these questions are important to consider regardless.

Now, someone could say, Duncan’s intent doesn’t matter — the outcome is oppression, regardless. But the conviction that intent doesn’t matter itself comes from within the Certainty Trap. If the judge isn’t trying to cause harm — if his positions are rooted in his own deeply held beliefs — this matters, because it’s a basis for conversation.

I don’t know Duncan, and I can’t vouch for his integrity. He could be precisely the attention-seeking bully some seem to think he is. My point isn’t to convince anyone that his motives are pure. It’s simply to say that the assumptions we make and the certainty with which we make them prevent us from talking to one another on many issues that matter.

If the goal is constructive dialogue and mutual understanding and the possibility of shedding new light and maybe even changing minds — I’m confident that didn’t happen at Stanford Law on the day of Duncan’s talk.

So how can we avoid the Certainty Trap and engage without compromising core beliefs or countenancing views that we believe cause harm?

There are two basic ways. One is to be aware that the tendency to condemn the character of someone who disagrees with us comes from a certainty that is fundamentally inconsistent with the world we live in — even if that means examining our certainty around what constitutes harm itself.

The other is to recognize that no idea, value or principle is exempt from questioning, examination or criticism — by oneself or others. This second piece means clearly articulating our principles. After all, it’s difficult to question what hasn’t been named. But, again, it doesn’t require letting those principles go.

Ultimately, we don’t have to abandon our principles or our values — we just have to be willing to hold them up to the light and examine them. One way to think about avoiding the Certainty Trap is that it’s less about answering questions than it is about generating them.

So, the next time you have a gut reaction that the right position on a heated issue is easy and obvious, and that anyone who disagrees is an idiot or a moral monster? Find those questions. They will serve you well. And they are always there.