The Full Audio Recording Of Judge Kyle Duncan At Stanford Law

Listen to this recording, ye mighty, and despair—although whether you despair about law students or judges might vary based on your priors.

Trouble in paradise? Stanford University (by David Madison via Getty Images).

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There has been a great deal of debate about various facts relating to Fifth Circuit Judge Kyle Duncan’s appearance last Thursday, March 9, at Stanford Law School, which was the subject of a rowdy protest. I hope that some of these debates can be settled by the following audio recording, which captures almost all of the proceedings. I thank my source for this valuable evidence.

The audio embed appears below, followed by my own observations, with (very rough) timestamps. I should add the caveat that I don’t have the best hearing, and in the interest of getting this out quickly, I have listened to the recording just once. But I know that you, my readers, can listen for yourselves and unearth additional nuggets. Please feel free to add your own observations in the comments to this post.

• 0:00: The recording begins near the end of Stanford Federalist Society president Tim Rosenberger’s introduction, so it’s missing some heckling of Rosenberger (but you can catch a bit when he refers to Judge Duncan being appointed by President Trump).

• 0:35: Judge Duncan takes the podium, as students make gagging noises, and attempts to deliver his prepared remarks. And it’s clear he does have prepared remarks, focused on high-profile rulings of the Fifth Circuit in specific areas of law where Supreme Court jurisprudence is unsettled. He’s heckled intermittently—e.g., “Boring!” or “We took Con Law!”—but he’s able to speak to a certain degree. It’s not as much of a shutdown as Ilya Shapiro at Hastings. But at least in my opinion—and now that we have full audio, we can have an informed debate—the protestors did violate Stanford University’s Policy on Campus Disruptions, which prohibits “[p]revent[ing] or disrupt[ing] the effective carrying out of a University function or approved activity, such as… public events.” The policy doesn’t prohibit “preventing the carrying out” of a public event; it prohibits “preventing or disrupting the effective carrying out” of a public event, and the words “disrupting” and “effective” should be given some meaning.

• 7:10: “The depth of contempt that you are showing me….” This is where Judge Duncan first diverges from his prepared remarks to criticize the protesters. From this point forward, it gets more difficult to hear because the frequency and volume of the heckling increase.

• 8:43: “It is appalling. And obviously in this school, the inmates have gotten control of the asylum.” This line by Judge Duncan, which is audible, is immediately drowned out by the audience response.

• 9:30: Students shout “This is our jurisdiction!” and “This is a valid form of communication!” (For why shouting down a speaker at a duly authorized event in an academic environment is not a legitimate form of counter-speech, see Ken White’s excellent Popehat post, “Hating Everyone Everywhere All At Once At Stanford,” or this great Q&A with Nadine Strossen and Greg Lukianoff for FIRE.)

• 9:43: Judge Duncan is still trying to deliver his prepared remarks, discussing divergent rulings of the Fifth Circuit and Sixth Circuit on the OSHA vaccine mandate.

• 10:10: After a student yells out, “You don’t respect us!”, Judge Duncan talks about the need to treat people the way you want to be treated yourself. A student asks, “How is it respectful to misgender someone in open court? I would like to know!”

• 11:40: Dean Tirien Steinbach identifies herself as an associate dean and enters the discussion: “You just asked for an administrator, and I’m here.”

• 12:48: Dean Steinbach begins her prepared remarks. What follows will be familiar to anyone who watched Ed Whelan’s video, read the transcript of Dean Steinbach’s remarks posted by the Foundation for Individual Rights and Expression (FIRE), or read my original story about the protest, so I won’t repeat or summarize her remarks again here. All I will say is this: to folks who are inclined to blame the difficulty of hearing Judge Duncan on the quality of this recording, this portion of the audio demonstrates that a speaker who isn’t relentlessly heckled or jeered can be heard perfectly clearly (except for where Dean Steinbach is interrupted by applause).

• 18:55: Dean Steinbach concludes, followed by enthusiastic applause.

• 19:16: One of the student organizers asks half the audience to walk out in protest and the other half to remain for Q&A, while “toning down the heckling slightly.”

• 22:12: Judge Duncan complains of being “heckled to death” and wonders whether the event has devolved into a “struggle session.”

• 22:35: Judge Duncan has an exchange with a student over Fusilier v. Landry, a case about the Voting Rights Act in which, according to his critics, he disenfranchised Black voters. While it’s true that Judge Duncan dissented in part, as he told me in our interview, I think this was a little disingenuous on his part. He dissented on standing grounds (and he concurred with Part II of Judge Edith Jones’s opinion on the merits). So like the majority, Judge Duncan would also have denied relief to the plaintiffs, a group of Black voters and the Terrebonne Parish NAACP—just on different grounds. [UPDATE (9:44 a.m.): I always try to give the people I write about the opportunity to comment, and I have an additional comment from Judge Duncan. While he disagrees with any claim that Fusilier “disenfranchised Black voters,” he does have this to share: “I think you’re right about Fusilier. I forgot why I dissented. Anyway, reasoned discourse wasn’t easy during that talk.”]

• 23:13: There’s an audible section here, beginning with “Let’s be clear about what’s going on here,” in which Judge Duncan again criticizes the protestors. He talks about how they are supposed to be learning to be lawyers and can’t act like this in court.

• 25:10: Judge Duncan asks the audience, after one of them notes that they asked FedSoc to cancel the event, “Why do you want to cancel people’s speech?” He goes on to condemn the protest as “infantile” and “ridiculous.”

• 26:38: Judge Duncan asks the audience when was the last time a FedSoc member showed up to one of their events to heckle a speaker. An audience member responds, “We’re not attacking their rights.” (Well, maybe their right to put on an event without disruption….)

• 27:15: Judge Duncan says “fine,” let’s move on to the question-and-answer session, but warns against asking him “hostile,” “ridiculous,” “when-did-you-stop-beating-your-wife-type questions.”

• 28:18: Someone asks an earnest question about scholarship arguing that one of Judge Duncan’s opinions, In re Abbott, reflects the principles of common-good constitutionalism. Judge Duncan responds that he doesn’t adopt academic theories to guide his decisions, and Abbott—in which he wrote an opinion upholding a Texas executive order temporarily postponing certain medical procedures, including abortions, during the pandemic—was a straightforward application of Jacobson v. Commonwealth of Massachusetts. This should be an interesting exchange to Con Law nerds; it reminded me of how Justice Amy Coney Barrett told me she is “not a fan of common-good constitutionalism.” It seems that even socially conservative judges like Justice Barrett and Judge Duncan are not running to embrace common-good constitutionalism, at least explicitly. (We could have had more meaty, substantive exchanges like this one, in which a sitting circuit judge explained how academic theories do or don’t affect his jurisprudence, had there not been so much disruption.)

• 28:56: A student asks about Judge Duncan’s comment, before he became a judge, that Obergefell, the Supreme Court’s ruling in favor of marriage equality, is “an abject failure” and “imperils civic peace.” He opines that it has indeed “imperiled civic peace” as “evidenced right here,” then goes on to complain about his being mistreated at this event merely because of “a difference of opinion.” This comment has been presented by some as Judge Duncan insulting the many LGBTQ+ students among the protestors. But in context, it sounds like he’s echoing the argument made by some of the Obergefell dissenters that the ruling would, in Justice Samuel Alito’s words, “be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

• 30:54: Judge Duncan suggests that “one point of this [protest] is to intimidate other people,” such as students with dissenting views, or maybe even to “silence” them or “erase their existence.”

• 31:18: Judge Duncan asks, “How does it feel? You complain about people like me, or judges like me, or lawyers like me, or whatever, you complain about them denying your rights or erasing your existence or whatever other buzzword you want, and then you turn right around and do the same thing to somebody else…. Hypocrites. That’s what you are, a bunch of hypocrites. You’re not interested in actually having a civil discussion with anybody. You just want to shut them down.”

• 32:30: There’s an exchange about the “Judge Duncan can’t find the clit” sign, in which Judge Duncan asks the protestors, “Are you 14 years old?”

• 33:05: A student who describes herself as a woman from Texas and a victim of rape asks about Texas’s ban on abortion. After citing statistics about the high incidence of sexual assault, she asks, “How am I, as a woman from Texas, to have access to citizenship or autonomy, if I am incapable of making choices about my own body and my future existence, when the consequences of childbirth and sexual violence could mean death, frankly, from giving birth? We have pretty high maternal mortality in the state of Texas. How am I to have access to citizenship?”

• 34:32: After an exchange I found difficult to follow, the student resumes her questioning: “In a society where women experience severe sexual violence, sexual violence that often leads to pregnancy, how can women have access to citizenship and be treated the way they wanted to be treated, if they have no access to their own reproductive rights? That’s my question.” [UPDATE (8:50 p.m.): As I mentioned, I don’t have great hearing, but a reader enlightened me on the “exchange I found difficult to follow.” Wrote this reader, “At 34:27, you can hear Judge Duncan saying, ‘You made a speech. Great. Congratulations,’ very sarcastically. I think this is pretty similar to the dismissive comment along the lines of ‘nice speech.’ In fact, I think it's even more dismissive.”]

• 34:50: Judge Duncan compares the question to “a long speech,” then explains that the case where he served on the panel, Whole Woman’s Health v. Jackson, concerned whom you can sue to enjoin a law—in this case, S.B. 8, the Texas abortion law that authorized “private civil actions against persons who abort an unborn child with a detectable fetal heartbeat.” He notes that private parties who tried to bring S.B. 8 lawsuits “were shot down by the state courts in Texas,” so “that’s the answer to your question about [abortion] access.” On the federal side, the Fifth Circuit panel in Whole Woman’s Health was addressing a “very specific legal question,” on which it got affirmed by the Supreme Court, “95 percent.”

• 35:23: “That’s how courts work,” Judge Duncan says. “Courts don’t address questions like that [i.e., the student’s question]. That’s a very nice speech. But courts don’t address speeches; courts address legal issues.” With this additional context, it appears that Judge Duncan was trying to explain that courts address concrete cases and controversies, not issues in a vacuum or “speeches.” So I don’t think it was the case, as claimed by some, that he responded to a survivor of sexual assault by dismissively saying, “Nice speech.”

• 35:50: “That’s what federal courts do,” explains Judge Duncan. “And by the way, the people who address large-scale questions like [abortion] are legislatures. The Congress. The legislatures of states. People acting together to make decisions on difficult issues. But evidently some of you are being taught in law school that it’s all up to the super-wise, Solomonic judges to just sort of make decisions. Well, you know what? I don’t ascribe to that particular view of the judiciary. We have other branches of government. We have state governments to do things. We have local governments to do things. That’s an answer to the question.”

• 36:26: A student asks, “Do you ever think about the ethical implications of your decisions? Or no, is that beyond the scope of your work?” Judge Duncan complains that this is a “wife-beater question,” but I disagree. It seems to me that the student was asking a logical follow-up to Judge Duncan’s comment about the role of judges. I think it might have been clearer to ask something like, “Do you ever consider the extra-legal, moral implications of your decisions?” Judge Duncan says he doesn’t understand the question, then asks if the student is referring to the rules of judicial ethics (which is again why I personally would have framed the question in terms of “extra-legal moral considerations,” not “ethics”).

• 37:10: The student clarifies by asking Judge Duncan if it’s appropriate for him to consider “fairness” in making decisions. Judge Duncan responds, “Judges aren’t supposed to engage in some ‘Cosmic Fairness Balancing,’ since we have elected officials to do such things.” He acknowledges specific situations where perhaps judges might be called upon by law to entertain certain equitable considerations, but states that these situations are the exception, not the rule. (Some critics of Judge Duncan accused him of refusing to answer the question, but I don’t agree with them; he did answer the question, just not in the way the student wanted.)

• 39:30: Students ask about Judge Duncan’s opinion in United States v. Varner, denying a federal inmate’s motions to change the name on the judgment of confinement to “Kathrine Nicole Jett” and to be addressed with female pronouns on appeal. Judge Duncan tells the students to read the opinion.

• 40:35: The event concludes with Judge Duncan saying, “Thanks to the Federalist Society for inviting me. As for the rest of you people, whatever.” The audience responds by chanting “Bye!” and applauding.

In my original story, I quoted one source who said the event ended 40 minutes before its scheduled ending time, but noted that a second source said it ran a bit longer. If the event started at 12:45 and ran approximately 41 minutes, the length of this recording, then it ended more like 35 minutes early. I will correct my original story accordingly; I take pride in how frequently I update and correct my posts, which reflects my commitment to accuracy.

So there you have it: the full audio of Judge Duncan’s controversial appearance at Stanford Law. As I mentioned at the outset, I welcome having more ears on this recording, especially since my hearing is subpar. Thank you in advance for your additional observations and insights.

[UPDATE (3/26/2023, 11:12 a.m.): Dean Martinez sent an excellent, eloquent, 10-page memo to the SLS community about the protest and its aftermath.]

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