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Judge on the U.S. Court of Appeals for the Fifth Circuit
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Judge Duncan is outspoken on the importance of the separation of powers as a safeguard to liberty. Judge Duncan has stated: “If improperly exercised, the judicial power distorts the balance of governmental authority in favor of our least-accountable officials.”
Duncan has criticized the term “originalism,” but adheres to the concept in practice. He said, “[A]lthough I think we profit greatly from a theoretical exploration of originalism. . . .I wish that word didn’t exist, originalism, it makes it sound like this newfangled theory of interpretation.” He further explained, “[T]o a certain extent I come to originalism in a sense by default and in another sense because it’s just so darn obvious.”
Duncan is also an advocate of the principles of federalism. Duncan wrote, “Federalism enhances collective freedom through ‘the diffusion of sovereign power.’ New York, 505 U.S. at 181. This diffusion enhances individual freedom by promoting self-government . . . .”
Duncan, a devout Catholic, has spoken frequently on faith as it relates to the public square.
Specifically, he has been a critic of the modern understanding of the Establishment Clause. When discussing the Establishment Clause and what is and is not the proper governmental relationship with religion, Duncan described, “The basic problem seems to be this: the circle of government actions forbidden by the [Establishment] Clause has been drawn too vaguely and too broadly — around something perhaps described as ‘bad relationships between religion and government.’ The circle needs to be far tighter — drawn in terms of ‘establishment’ as a legal construct and less as a cultural, sociological or theological construct; drawn in terms that restrain distinct institutional relationships between the state and actual ‘churches,’ instead of policing the vague boundaries between the ‘religious’ and the ‘secular.’”
Before his confirmation to the bench, Duncan demonstrated his promotion of religious liberty as an attorney working with the Becket Fund.
Duncan served as lead counsel in Hobby Lobby Stores v. Sebelius, representing Hobby Lobby in seeking a preliminary injunction against enforcement of a federal mandate requiring its insurance to cover all FDA-approved contraceptive methods. He also represented the nuns in Little Sisters of the Poor v. Sebelius battling the same federal mandate.
In a March 2024 opinion that both protects religious exercise and preserves parental rights, Judge Duncan affirmed a district court holding that Title X does not preempt a Texas law giving parents the right to consent to their teenagers’ obtaining contraceptives.
While in private practice, Duncan represented the state of Louisiana in a suit to defend its law requiring abortionists to have local hospital admitting privileges.
Duncan co-authored an amicus brief supporting Texas's abortion restrictions in Whole Woman’s Health v. Hellerstedt. He also defended a Texas law requiring clinics that perform more than 300 abortions per year to register with the state.
Additionally, he worked with Becket Fund to “defend the conscience of millions of Americans impacted by the HHS abortion-drug mandate” imposed under the Obama administration.
Duncan represented a Virginia school board in a challenge by a “transgender” student over bathroom access. Duncan described the school's rule requiring students to use the bathroom aligning with their biological sex as a “commonsense restroom and locker room policy” and asserted the position that “decisions about bathroom use should be left to states and local school boards.”
Duncan opposes the decision in Obergefell and condemns the government’s meddling in free speech and LGBTQ agendas. Judge Duncan wrote an article criticizing the Obergefell decision, arguing that it is inconsistent with Windsor’s respect for state's rights and the democratic process: “To be sure, Obergefell does not entirely omit mention of democratic debate. It gestures towards ‘referenda, legislative debates, and grassroots campaigns.’ But the majority seems to say that these things are valuable only to give the Court an ‘enhanced understanding’ of the issue, which it is now time to decide. That is an alarming theory of constitutional law.” He also expressed concern over the waning ability of same-sex marriage dissenters to express their views openly: “One hopes Justice Alito is mistaken. One fears that – given the rhetoric and reasoning of the majority opinion in Obergefell – he may be proven right.”
In an appeal to the Fifth Circuit, Duncan refused to utilize the preferred feminine pronouns of a biological male litigant. Duncan wrote: “Congress has said nothing to prohibit courts from referring to litigants according to their biological sex, rather than according to their subjective gender identity.”
Judge Duncan is a devout Catholic Christian.
Duncan has a robust faith which he speaks openly about and he seems to actively submit his work to the Lord. For example, Duncan stated that, “[i]It was the Lord speaking to me saying, ‘you think you have it hard,’ get a taste, a tiny little bit of what my Son endured to save you. Do pray for us . . . and most importantly, that the Lord’s purposes would be worked out in this litigation.”
Duncan believes that Madison was right that men need government. He said, “Madison’s point still holds, men are not angels and so they need government, and they need separation of powers. And that’s why Justice Scalia was right about that.”
Duncan believes that no-fault divorce did “the opposite” of strengthening marriage and helping children.
Duncan voted against upholding a federal law that threatened Second Amendment rights. In Mance v. Sessions, Judge Duncan joined the dissents of Judges Ho, Elrod, and Willett arguing against the majority’s refusal to rehear the case en banc when a 5th Circuit panel upheld a federal law that required firearms dealers to only sell guns to in-state residents.
In United States v. McGinnis, Judge Duncan applied the post-Heller two-part framework for Second Amendment challenges and affirmed the conviction of a defendant who possessed a firearm while subject to a domestic violence protective order. However, notably, Duncan wrote a concurrence to “reiterate the view that we should retire this framework in favor of an approach focused on the Second Amendment’s text and history,” and further noted that he “would support en banc review in this case or any appropriate future case to reassess our Second Amendment analysis.”
Duncan moderated a Federalist Society panel entitled “Classrooms, Curricula, and the Law” at the 2021 National Lawyers Convention, in which speakers discussed and debated the role of Critical Race Theory (“CRT”) in K-12 schools and laws that attempt to limit the use of CRT in schools. When an audience member asked a panelist to define the concept of “equity,” Duncan added: “Where did this come from? These are ideas, right? They didn't just blossom out of nowhere. These are ideas, so where did it come from, how is this equity idea getting into the school boards, the teachers, or the curricula, and why now?”
As a judge, he also addressed First Amendment issues in the classroom. In 2021, Judge Duncan wrote the dissenting opinion in Oliver v. Arnold and argued that an assignment to transcribe the Pledge of Allegiance is not tantamount to “compelled speech.”
Judge Duncan has correctly pointed out that administrative agencies are staffed by individuals who are not elected by the public, yet they hold significant power and issue decisions that are “extremely consequential to the lives of the American people.”
When discussing the Major Questions doctrine, Judge Duncan explained that an “administrative agency is a creature of law . . . and because the administrative agency is not directly accountable to the people, in order to preserve some accountability, we have to find a legal mandate for it.”
Duncan has been a longtime member of the Federalist Society and an active participant over a 12-year period.
Duncan has been a member of the Knights of Columbus since 2005, and was a poll watcher for Mitt Romney’s presidential campaign in 2012. Lastly, in 2016, Duncan was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.
Duncan supported voter-ID laws and upheld election integrity during COVID-19. Judge Duncan wrote the majority opinion in Tex. League of United Latin Am. Citizens v. Hughes, upholding Texas’ absentee voting laws. Judge Duncan’s opinion explained, “First, the district court vastly overstated the ‘character and magnitude’ of the burden allegedly placed on voting rights by the October 1 Proclamation [that specified mail-in ballots could be delivered only to one designated location per county]. Steen, 732 F.3d at 387 (quoting Burdick, 504 U.S. at 434). Indeed, one strains to see how it burdens voting at all.” Judge Duncan further states, “States have critically important interests in the orderly administration of elections and in vigilantly reducing opportunities for voting fraud.”
He also supported bodily autonomy and disfavored government overreach regarding the COVID vaccine. Judge Duncan was on a Fifth Circuit panel that maintained an injunction preventing the Department of Defense from enforcing certain COVID-19 vaccination requirements. The per curiam opinion held, in reference to the servicemembers’ RFRA claim, that “[a]ccepting the vaccine would directly burden their respective faiths by forcing them to inject an unremovable substance at odds with their most profound convictions,”and ultimately found that “[t]hese circumstances impose a substantial burden on Plaintiffs.”
*Citations are available in the downloadable PDF research document above.
Best meets the ten principles of a constitutional judge.
Rating: GreyNeutral. Record is not as fully developed. Cannot be rated as “green” or “red.”
Rating: RedFails to meet the ten principles of a constitutional judge.
AFA Action is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association.