Friendly Disagreements with Justice Stegall (A Continuing Series)

[This is an expanded version of a column of mine making the rounds here in Kansas; as usual, I pretentiously felt I needed more space to make my point entirely. Mea culpa.]

Kansas Supreme Court Justice Caleb Stegall and I have known each other for going on 20 years. We're not close friends; I think we’ve met in person four times at most. But all through those years--particularly in the early ones, before I found a permanent place here at Friends University and he found a permanent place on Kansas's highest court--we regularly shared ideas, and argued about ideas, and not-infrequently fiercely disagreed with each others' ideas. Thanks to all these online interactions we’ve come to know each other and, I think, like each other, despite our deep disagreements, perhaps because we can also see in each other some foundational beliefs and loves we share. I look back on the appreciation I wrote on him eight years ago, when Governor Brownback appointed him to his current position, and I don't think I'd change a word.

All of this is just to that when Caleb made the news recently for a letter he wrote to several faculty at KU Law, his alma mater, stating that he would not continue on as an adjunct teacher there, I was surprised. I wanted to understand his reasons for cutting those particular ties--and now, having read the letter, I think I do. As usual, though, I have questions about it, and a disagreement or two as well.

Two years ago, Caleb did another surprising thing: he publicly rebuked leading members of the Kansas Republican party--which he is a longtime member of--for orchestrating a successful vote against Carl Folsom III, a lawyer with a long career as a public defender on the state and federal level, whom Governor Laura Kelly had nominated to the Kansas Court of Appeals. It was, of course, just a partisan, party-line vote, but GOP leaders had claimed justification because Folsom had, as was his job, defended people charged with various crimes, some of them pretty horrible ones, and that was used to smear the nominee. This frustrated Stegall, and he called out those Republicans for failing to honor “the ideal of a public-spirited, deliberative, and reasoned engagement with others.” 

Now, my philosophical understanding of that ideal isn’t exactly the same as Caleb’s; as I've written before, classical liberal notions of open discussion depend, among other things, upon a degree of civic friendship, which in turn depend upon the maintenance of norms which many people today, for many different reasons (technological as well as ideological, historical as well as cultural), may rightly feel to have been rendered moot, over perhaps even entirely (or perhaps even justifiably) overturned. Much of our divergence here is likely reflective of what Caleb asserted in his letter as the imperative of "privileging individual character and merit above group characteristics"; leftist and communitarian that I am, I'm much more willing than he to consider how norms may be tied up with structural, collective, and historical realities which must be considered whenever one makes judgments in reference to individual rights or claims.  But whatever those particular philosophical disagreements, the liberal ideal he defends remains one which I--as a college professor and occasional pundit whose whole career is dependent upon communication, discussion, and engagement--I have great respect for as a crucial component of our civil society. And regardless, I admire how that ideal has guided Caleb's thoughts and actions over the years as well. 

So how does ideal come into play with his decision to end his teaching association with KU Law? On my reading, it turns on his concern that his old stomping grounds have shown “an institutional failure to cultivate the norms, habits, and skills necessary to the task of lawyering.” The precipitating cause of this concern of Caleb's was what he called the “bullying” response made by of certain members of the KU Law community (specifically, those associated with the school's Diversity, Equity, Inclusion, and Belonging Committee) when the conservative KU Law Federalist Society invited a speaker from the controversial Alliance Defending Freedom to campus. The bullying he mentions included calling student leaders of the club into a meeting to warn them against the invitation, and those students being subsequently labeled as facilitating hate speech by the aforementioned committee. (The speaking event went forward as planned, by the way, with accompanying protests; everyone's First Amendment rights were fully respected, or at least so it appears.)

Now in light of prioritizing engagement, Caleb is plainly correct that, like them or hate them, the ideas promulgated by ADF—which generally frame almost any advance in LGBTQ rights as an attack on religious freedom (consider the role they played in pushing forward a current lawsuit over the supposed potential interference which a Colorado law poses to those who do not wish to acknowledge the legality of same-sex marriage)—have long been present throughout Kansas’s legal environment, including at events sponsored by the Kansas Bar Association. Hence, discouraging students from confronting certain ideas—even those which, as Stegall admits, may be seen as “existentially threatening”—is probably not the best way to prepare Kansas’s future lawyers. Quoting Professor Richard Levy, a longtime KU Law faculty member, Stegall rightly makes the point that “if lawyers cannot talk to each other about difficult subjects on which they disagree, how can we expect anyone too?” That position seems consistent to me.

But I'm not sure how to square that consistency with his decision to separate himself from KU Law. I suppose that if in his considered judgment his alma mater really has caved into a kind of "authoritarianism" which threatens to "cripple a person's ability to critically engage with ideas or people with whom they disagree," then it might not be unreasonable to speak out against those developments by way of withdrawing from the institution. Perhaps we could understand that as a form of protest, or as the posing of a countervailing power as a way to pushing KU Law's leadership to take corrective action. (Caleb perhaps implies this, when he wrote in his letter that he is acting on this matter with a consciousness of others who may feel the same disgruntlement as he, but lack the "authority or security to speak up"--something which, as a state supreme court justice, he obviously is in full possession of.)  But still, in our present moment, it seems to me that remaining present exactly so as to continue to engage, as a colleague and friend, with those whom one disagrees—including disagreements over how to respond to the way some at KU Law may have dealt with an ideological disagreement!--is vital.

Last year, Caleb gave a wonderful address--which he quoted from in his letter to KU--that addressed in part the fact that the law can never be entirely disentangled from the arguments over the ethical concerns and procedural outcomes which always surround it. After sharing an old Jewish parable, he concluded that, in the midst of these quandaries, “heaven smiles mischievously down on us”--then added, “we can smile back, if we have the stomach for it.” It's entirely possible to read this passage--and I suspect this was Caleb's intention--as suggesting a criticism of KU for lacking the stomach to deal with serious, even "existential," disagreements. But by the same token, that line could be understood as a petard upon which Caleb has hung his own arguments. 

To be sure, every person’s stomach for dealing with disagreement is going to be different, and to repeat what I said above, I can certainly see withdrawing in the face of a disagreement as sometimes a productive way of engaging with it. It's not like anyone, I suspect, can entirely refuse to ever draw lines in the sand which they will never cross, or will always withdraw to one side of. So I take seriously Caleb’s reasoning for drawing his line here; I'm not in a position to say he did wrong, and I'm not in agreement with those with condescending takes on my friend's decision. But still, I must admit: it just doesn’t seem consistent to me with his own best arguments; it's not entirely like the smart and gleeful debater I've known over the years. No doubt, this will be something we can continue to disagree about as well.