A landmark US supreme court ruling expected before the end of June could shutter most of Louisiana’s abortion clinics and precipitate clinic closures in more than a dozen other states.
The case, June Medical Services v Russo, is one of the most high-profile supreme court cases of the year, after Donald Trump appointed two justices who tipped the balance of the court to a conservative majority. And it might never have reached the supreme court without the aid of another Trump-appointed judge, Stuart Kyle Duncan.
The Louisiana case centers on law that would force abortion doctors to gain permission to admit and treat patients at nearby hospitals, known as “admitting privileges” – a bureaucratic hurdle that has been shown to shut down a large swath of abortion clinics.
The supreme court ruled an almost identical Texas law unconstitutional in 2016, but Louisiana is arguing that what is unconstitutional in Texas can still be constitutional across the state border.
Duncan fought the Louisiana case while in private practice until the spring of 2018, when he was confirmed as one of Trump’s five lifetime appointments to the fifth circuit court of appeals.
This year, several states have sought to severely restrict a woman’s right to abortion by designating it an elective treatment that is not necessary during the coronavirus pandemic. Though appeals courts largely refused to uphold these bans, Duncan was one of two judges on the fifth circuit court who repeatedly upheld Texas’s ban in a series of rulings that threw abortion access into weeks of disarray.
Part of Trump’s lasting legacy
In just three years, the Trump administration has stacked federal courts with an army of conservative judges: 143 district court judges, 51 appeals court judges and two supreme court justices. Trump’s lasting legacy may be stuffing America’s most important courts with largely white, male, conservative justices who will rule over important social and cultural issues such as reproductive rights, LGBTQ issues and immigration for the next three or four decades.
One-fifth of the federal trial judges now owe their seat to Trump, as do one-fourth of appellate judges. According to the progressive research group Data for Progress, Trump’s cohort are also ideologically to the right of previously appointed Republican judges
With the election looming in November, the Senate majority leader, Mitch McConnell, vowed to push ahead with nomination hearings and “leave no vacancy behind”.
And nowhere will Trump’s impact be felt greater than in the states that lie under the jurisdiction of the nation’s most conservative appeals courts. The fifth circuit, for example, covers the Republican strongholds of Texas, Louisiana and Mississippi, making it the likely final arbiter on the constitutionality of a slew of conservative laws.
“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,” said Daniel Goldberg, legal director at the progressive judicial non-profit the Alliance for Justice.
Five of the 17 active judges on the fifth circuit are Trump appointees, making an already right-leaning appeals court arguably “one of the most, probably the most, conservative” in the nation, Goldberg added.
The mantle is significant. While most attention tends to fall on the supreme court, that court hears only about 100 cases in a year. Appeals courts collectively handle in the range of 50,000. The nation’s 94 district courts are geographically organized into 12 circuits, which hear the bulk of appeals, and from those cases, the US supreme court chooses just a fraction.
It was a fifth circuit panel that ruled to uphold Louisiana’s admitting privileges law in 2018, despite the fact the Texas law had been struck down two years prior. In early 2019, the full bench of the fifth circuit voted to refuse to rehear the case, forcing the supreme court’s hand and setting the stage for this summer’s looming decision. Since he had represented Louisiana, Duncan abstained from the court’s decision.
But Trump’s other four appointees were among the nine judges that upheld Louisiana’s law. One, James Ho, has since made headlines for decrying the “the moral tragedy of abortion” in an opinion. Others have criticized the Voting Rights Act – a civil-rights era law that forced states with histories of violent voter suppression to obtain approval from the justice department over changes to elections, a law that conservatives on the supreme court gutted in 2013.
Duncan is a lawyer with “proven culture wars credentials”, said Amanda Bursky-Hollis, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution.
The vote to confirm his appointment to the fifth circuit bench split along party lines, 50-47, and his bid was aided by the conservative Judicial Crisis Network – an ally of the Federalist Society, a conservative group that has aided Trump by selecting judges for him to nominate. The Judicial Crisis Network spent tens of thousands of dollars on TV ads in Louisiana praising Duncan after Senator John Kennedy expressed skepticism at giving a seat conventionally held for a Louisianian to a “Washington lawyer”. By the time of Duncan’s nomination hearing, Kennedy hailed Duncan as “staunchly and vociferously pro-life” and “pro-religious liberty”.
In favor of religious liberty
Duncan, a married father of five, was born in Baton Rouge in 1972.
Religious liberty is Duncan’s specialty, going back to his time in the mid-2000s as a professor of law at the University of Mississippi, where his scholarship centered on the separation of church and state. Duncan has argued alongside the religious liberty powerhouse the Alliance Defending Freedom (ADF) and taught at its Blackstone Legal Fellowship, a kind of career boot camp for elite Christian lawyers that the ADF calls a “ministry”.
Duncan made his name in 2014 at the boutique religious rights firm the Becket Fund for Religious Liberty, when he was the lead counsel on the victorious supreme court contraception case Burwell v Hobby Lobby Stores. That pivotal decision laid the groundwork for corporations to opt out of providing birth control for employees based on religious objections, and it preceded another major contraception case the court heard this spring, one that could further favor the religious and moral objections of employers over the rights of their employees to access healthcare.
Duncan is a devout Catholic. Before his appointment to the fifth circuit, on mornings before he was scheduled to argue before the supreme court, he would recite the rosary to calm himself.
A large part of his career as an appellate court specialist was spent defending Republican state laws popular with the religious right and social conservatives. He fought to keep Louisiana’s same-sex marriage ban: the matter belongs in the states, would have “unforeseen” consequences, and LGBTQ rights have “nothing” (his empasis) to do with civil rights cases, he argued. He defended a North Carolina anti-trans bathroom law and a similar Virginia school board policy. And he argued in favor of a North Carolina voter ID regulation that the fourth circuit found targeted African Americans “with almost surgical precision”.
Paul Baier, a law professor at LSU who never taught Duncan, supported his nomination despite having argued against him in the same-sex marriage case at the Louisiana supreme court. Duncan is a “superb advocate” and a “very careful, painstaking judge”, he said. He described Duncan’s reasoning in his opinion to uphold Texas’s coronavirus-related abortion ban as an “exemplar of the studious judge judging”.
The Federalist Society acts as an alternative to the American Bar Association with a monopoly on Republican nominees, Hollis-Brusky said, strategically placing people like Duncan who can’t be dismissed as a “crazy Christian” or “Bible-thumper”.
Over the course of his nomination process in 2017, the Democratic senator Dianne Feinstein questioned him about some of the arguments he had made in past controversial cases. Duncan responded by stating that “in representing clients I do not advance my personal views, but the interests of my clients”.
During his nomination hearing, Duncan presented himself as fair-minded and reasonable. He strove especially to reassure the Democratic Senator Dick Durbin over his record of advancing religious rights above all others.
“Where do we draw the line with your right as an individual,” asked Durbin, “as opposed to my right to assert religious liberty?”
“It’s a balance, it’s gotta be a balance,” Duncan replied.
He referenced the Hobby Lobby case, describing it as a “close case” because “women would be deprived” of contraception.
Three years earlier, Duncan had used opposite terms. “We find ourselves in the midst of what we see, and what we see correctly, as one of the most flagrant attacks on religious liberty that that we’ve ever seen in this country,” Duncan told a panel in 2014.
“And most importantly, from our point of view, it’s not about striking the appropriate balance,” he went on. “The first amendment has struck the balance for us, and that balance is in favor of religious liberty.”
Few Trump appointees have survived the nomination process without outrage from progressive groups. Duncan is no exception.
“The specific judges the Federalist Society supported are selected by the president to implement his agenda of dismantling health care, eliminating civil, women and workers rights and shielding his wealth and actions from public scrutiny,” said Nan Aron, the founder of the Alliance for Justice.
Duncan summed up his life’s work in 2014, in an article for the Ivy League Christian Observer. “All I really want to do,” he said, “is what God wants me to do with the talents he gave me.”