Last week, Fifth Circuit Judge Kyle Duncan went to speak at Stanford University Law School at the invitation of that school’s chapter of the Federalist Society. Duncan has been one of the leading conservative judicial culture warriors crusading against LGBTQ rights and is virulently anti-trans. As a lawyer he has argued at the Supreme Court against same-sex marriage, supported same-sex marriage bans at the state level, and was the lead litigator defending North Carolina’s “bathroom bill,” which prohibited trans teens from using bathrooms that align with their gender identity. As a judge, his opinions, in addition to continuing the long tradition of Federalist Society judges’ denying rights to anybody other than white cis-het men, are laced with cruelty toward the LGBTQ litigants. In one case, he denied a transgender woman’s request to legally change her name (and her pronouns) while incarcerated, willfully misgendering her throughout the proceedings..
As a judge, Duncan is an embarrassment, and as a person he appears to be vile. That combination made him the perfect candidate for this particular Federalist Society stunt: Duncan (a judge based in Louisiana) went to Stanford (a law school based in California) to talk about “Covid, guns, and Twitter.” I can only assume FedSoc wanted him to come because the Flat-Earth Society couldn’t afford his honorarium. He received exactly the welcome one would expect: Students (many of them LGBTQ) protested, made signs, shouted. Many also stayed to listen to his speech, which he refused to give, and tried to ask him questions, but he wouldn’t answer them. The very people Duncan refuses to acknowledge as deserving of human dignity tried to make Duncan see them. And he balked.
Duncan seems to have come prepared for all of this. He arrived brandishing his cell phone and proceeded to record the protesters. And, almost as soon as he left the building, Federalist Society sycophants rushed out heavily edited videos of Duncan’s appearance on social media. Then they did their old song and dance about free speech (for conservatives, not the protesters) and civility (toward conservatives, not the marginalized people conservatives hate). As is usual, they collapsed the difference between the right to appear at Stanford and the right to force Stanford students to sit there like docile automatons while Duncan held forth. Everybody has the right to speak; nobody has the right to be heard over the din of the crowd. But the conservative echosphere pretends not to understand this distinction.
In a more extensive recording of the event—one not edited by friends of the FedSoc—Duncan can be seen being hostile and combative towards the students who stayed to ask him questions. He called some of them “appalling” (later he would call them “dogshit”) and wouldn’t answer many of their questions. What he actually proved is that listening to him is pointless, because he has neither the temperament nor the intellect to defend his odious positions when pressed by people who disagree with him. Making a sign, as one brilliant Stanford law student did, which read “NO ONE THINKS YOU ARE COOL” was in fact the best way to engage with Duncan’s views: He wasn’t there to defend his positions; he was just there to spew the arrogant bigotry that gets you invited to FedSoc events.
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The entire escapade sure seems like a set-up. Duncan went into a hostile environment spoiling for a fight, got one, videotaped it, and then ran to his media spokes-buddies to cast himself as a victim. Why? Because being a “victim”—and then using that status to justify antidemocratic measures to defeat your enemies—is how you get ahead in the Republican judicial promotion sweepstakes. Kavanaugh was able to retain his Supreme Court nomination, instead of being discarded as a potential rapist, because he made himself a “victim” of the MeToo movement and then cried and screamed and threatened to exact revenge on his enemies. Amy Coney Barrett became the favorite to replace Ruth Bader Ginsburg when Senator Dianne Feinstein clumsily went after her religious background during a confirmation hearing.
It’s not just Duncan who is doing this. A few months ago, Fifth Circuit Judge James Ho and Eleventh Circuit Judge Lisa Branch created a fake controversy by purporting to “boycott” hiring Yale Law students as clerks. Nearly every opinion written by D.C. Circuit Judge Neomi Rao is like an open audition for Kids Say the Darndest Things as she tries to prove to whoever is watching that she will adopt the wackiest legal theories available. As Mark Joseph Stern writes on Slate: “Writing careful, serious opinions is no longer a viable path to SCOTUS. The conservative legal movement is increasingly looking for judges who approach the job with a politician’s instinct for ruthless demolition of the opponent.”
These conservatives are not behaving like judges; they’re behaving like TikTok creators looking for their next 45 seconds of fame.
Duncan has placed himself squarely within this attention-seeking tradition. He’s not just a judge; he’s also a veteran political activist—a politician, angling for his next promotion. As such, he was greeted by Stanford students exactly as (one hopes) Ron DeSantis or David Duke would be greeted by Stanford students. He was treated the same way Joe Biden would be treated if Biden went to a mega-church or Southeastern Conference football game or wherever the MAGAs are educating their children these days. (Biden, by the way, is able to deal with hecklers without running home and crying about how mean people are to him.) Duncan was treated like a politician, because that’s what he is, and politicians have long understood that, in the United States, shouting at them is our birthright.
Indeed, all of our free speech laws, norms, and customs are designed around the concept that shouting at politicians is our most protected speech right. We afford no higher level of speech protection than we give to the person who scrawls a sign suggesting that a powerful politician has an inappropriate relationship with their mother, and then delivers that message to the politician in public. The idea that a political speech deserves the quiet deference one brings to a golf course or a tennis match is an idea that runs counter to our American traditions. I’m old enough to remember the last State of the Union address, and I recall Majorie Taylor Greene spending the president’s entire speech braying like a howler monkey looking for a date. I see no reason for Stanford Law students to comport themselves better than Republican members of Congress.
Judges are not used to being treated like politicians. They’re used to being treated like they’re above the political fray, like they’re scientists musing about whether the laws allow for covalent or ionic bonds, as opposed to jackboots determining who gets to have a family. Conservative judges, like Duncan, have chosen to insert their unreconstructed thoughts into our national political debates. Duncan purports to tell us where we can go to the bathroom, what pronouns we must use, and how many minutes after a rape people have before their bodies become incubators in service of the state. And conservative judges like Duncan have used their power to do everything from overruling health experts on virus response to telling us which innocent people still deserve to die. But the rest of us aren’t allowed to scream and shout and stomp our feet when these unelected, unaccountable rulers poke their heads out long enough to indoctrinate the next generation of fascist sympathizers?
Please. Old-school monarchs didn’t enjoy the level of protection from public abuse Federalist Society judges claim to be entitled to. Duncan is lucky nobody at Stanford brought any unneeded vegetables.
But conservative judges want to have their cake and eat it too. They want all the political power they have to remake society in the image of a fragile white man’s dream, but none of the political blowback that comes from trying to force their nightmares upon others. They want to speak only to the antebellum remnant that agrees with them and expect those who will lose their rights from conservative victories to sit quietly.
Stanford law students deserve a lot of credit for seeing through the judicial farce and registering their discontent in the traditional American way.
