by Katherine Beck Johnson
June 16, 2020
The Guardian put out a piece attempting to criticize Judge Stuart Kyle Duncan on the Fifth Circuit Court of Appeals. The piece only succeeded in highlighting the author’s fundamental misunderstanding of the role of a judge. It is not the role of a judge to weigh into what the law should be, but rather the judge interprets what the law is, the law enacted by the people’s representatives.
Many of President Trump’s judicial nominees are originalist and textualist. While these may be considered “conservative” judicial philosophies, the result is not always conservative policy goals. If the judge is interpreting a “liberal” law, the text will lead to a result that is liberal. The basic goal of originalism and textualism is that the people, not unelected judges, say what the law ought to be. The judge’s role is to say what the law is, or what the people enacted through their elected officials. Therefore, the Guardian’s fearmongering piece claiming that the judges appointed by President Trump have any role in abortion law is false. It isn’t Trump-appointed judges, it’s the people that have the role of saying what abortion laws should prevail in their states. Judge Duncan is no exception to this rule.
The piece quotes the legal director at Alliance for Justice saying, “For the overwhelming number of cases, the constitutional rights of the people in Texas, Louisiana and Mississippi will be made by Kyle Duncan and the other ultra-conservatives on the fifth circuit.” This is false. The rights of the people will be made by the people—not the judges on the fifth circuit.
While a lawyer in private practice, Judge Duncan advocated for Louisiana’s law that is currently before the Supreme Court: June Medical v. Russo. This law requires abortionists to have admitting privileges at a nearby hospital. It’s a commonsense law that demands abortion facilities abide by the same rules as all other outpatient surgical centers. When Judge Duncan was in private practice, he defended this law on behalf of the state of Louisiana until he became a judge. The Fifth Circuit, where Judge Duncan now sits, upheld this law. Judge Duncan followed proper judicial protocol and recused himself from the case because he had advocated for Louisiana when he was in private practice. He has clearly conducted himself in an ethical manner on the Fifth Circuit.
The Guardian piece is yet another example of a judge being attacked for their faith, as the piece specifically points out Judge Duncan’s Catholic faith. In America, one’s religion does not prevent them from being selected for a job. Judge Duncan’s history advocating for religious liberty is another aspect of him that the piece viewed as problematic. A judge that recognizes our first freedom, our freedom of religion, is not problematic. Judge Duncan understands just how important religious liberty is to our Constitution.
The Constitution makes it clear that the role of a judge is to say what the law is and not what the law ought to be. The people of the United States are the ones charged with saying what the laws that dictate their lives should be. Judge Duncan knows his role as a judge and has done a wonderful job. We need more judges like Judge Duncan.