San Francisco Chronicle
Judge reaches cancel-culture fame
In 2018, President Donald Trump appointed Stuart Kyle Duncan to the U.S. Court of Appeals for the Fifth Circuit, the most conservative federal appeals court in the country. Duncan was a natural fit: Before taking the bench, he was best known for representing the conservative owners of Hobby Lobby craft stores chafing under the burden of having to provide their employees with health care that includes contraceptive access.
In 2016, Duncan referred to Obergefell v. Hodges, the U.S. Supreme Court decision that recognized a constitutional right to same-sex marriage, as an “abject failure” that “imperils civic peace.”
As a judge, Duncan has done more of the same. Last spring, he joined an unsigned opinion ordering President Biden to deploy unvaccinated Navy SEALs, the strenuous objections of military leaders notwithstanding. Two years before that, he used a transgender woman’s request that the court use her preferred pronouns as an excuse to uncork a bizarre, Fox News-esque screed bemoaning the vagaries of gender identity politics.
All this time playing in the culture war sandbox made Duncan an attractive guest speaker candidate for Stanford Law School’s chapter of the Federalist Society, a well-heeled organization of conservative lawyers more or less responsible for Trump’s judicial nominations agenda. On Thursday, Duncan arrived on campus for an event billed as a discussion of “COVID, guns and Twitter” over complimentary lunch. Students who find some or all of Duncan’s jurisprudence objectionable planned a protest.
Things unraveled quickly. Duncan, who was expecting a hostile audience, kicked things off by filming protesters on his phone; one witness characterized him as “looking for a fight,” and “more like a YouTuber storming the Capitol, than a federal judge coming to speak.” Shortly after the event began, Duncan appealed to the school’s administration for help with his hecklers. Associate Dean Tirien Steinbach, who had also prepared for fireworks, stood and acknowledged the legitimacy of the students’ anger toward Duncan before reiterating his right to speak. The judge, visibly flustered, decided to open the floor for questions.
This is not to suggest that Duncan answered them in any meaningful sense. Video shows Duncan yelling at students, accusing them of “willfully misunderstanding” him. Throughout, his tone ping-pongs between smirking condescension and righteous indignation; at Stanford Law School, he proclaims, “the inmates have gotten control of the asylum.” A simple question about the reasoning of the opinion about the transgender litigant’s pronouns reduced Duncan to a spluttering mess. After functionally ignoring it, he concluded: “Thanks to the Federalist Society for inviting me. As far as the rest of you people — yeah, whatever.”
Reasonableness, of course, is in the eye of the beholder. But for my money, it is genuinely weird how badly Duncan, who is perhaps unaccustomed to audiences who don’t share his worldview, loses it. Literally on his way out the door, Duncan — again, a life-tenured federal judge who is supposed to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” — calls a woman an “appalling idiot.”
Much of the fallout has centered on who, exactly, is the bad guy here: the law students who were rude to a federal judge or the federal judge who gave at least as good as he got. Stanford, forever mindful of its desire to remain in the good graces of powerful people, issued a formal apology that did not satisfy the army of politicians and pundits (and Duncan) who demanded that the school discipline the protesters and/or fire Steinbach. The fact that the target of their outrage is a woman of color is, I am sure, a coincidence.
No matter who you think behaved worse here, the answer doesn’t matter for Duncan, because he got what he wanted: fame. Ever since Brett Kavanaugh’s shameless partisan histrionics got him confirmed to the Supreme Court in 2018, maintenance of a dignified temperament has hardly been a prerequisite for Republican judicial candidates. As Slate’s Mark Joseph Stern noted, it’s hard not to view Duncan’s performance as a not-so-subtle audition for the next Supreme Court vacancy that arises under a Republican president. If he were honest, he wouldn’t be excoriating protesters for “silencing” him at some forgettable law school lunch event. He’d be thanking them for making him an overnight celebrity in the circles that matter most.
Regrettably, Duncan’s experience at Stanford will not be the end of the Kyle Duncan experience. Trump appointed more than 200 federal judges during his presidency, many of whom share Duncan’s passion for infusing the law with their reactionary policy preferences. Collectively, these justices and judges have ended the right to abortion care, made it more difficult for lawmakers to protect Americans from gun violence and further reduced the right to vote to a polite-sounding nullity. They are also just getting started.
In such a competitive field, Republican lawyers with lofty career ambitions will have to find creative ways to distinguish themselves from their fellow culture warriors. By making his play for the attention that follows cancel-culture victimhood, Duncan showed them the way forward.
In a conservative legal movement fueled by an unending supply of grievances, strategic self-martyrdom is about to become a lucrative business.