Postmodern analysis has gotten a really bad rap. Understandably, there’s only so much vagueposting that passes itself off as cutting-edge commentary one can stomach before you want to get rid of the whole genre. But there are some concepts that remain useful. When Nietzsche heralded the death of God in the The Gay Science, it wasn’t some giddy realization. It was the somber recognition that the traditions and value systems that gave our individual lives and social order guiding principles became passé — that we couldn’t believe in them anymore even if we wanted to — but also that the iOS update had a staggered rollout. A little later, other sociologically minded thinkers would catch on and theorize the effects of people coming to terms with meaning not meaning much anymore: Baudrillard in Forget Foucault remarks that the process of disenchantment can occasion a playful response to signs of collapse: yes, the “Leader of the Free World” may have dementia and sundown about SCOTUS decisons on his personal social media and causes so many fires that DOJ employees are requesting sanctions so they can sleep, but it is kind of fun to read about, no?
The judging style of Lawrence VanDyke is another one of those “fun” occasions. We’ve drawn attention to his breaks from convention before. I rather liked his gun breakdown dissent, but his “swinging dicks” opinion — thank God, dead or not, that there was no accompanying video — got the amount of ridicule it deserved. But it is getting praised elsewhere. National Review’s The Postmodern Jurispridence of Lawrence VanDyke is an attempt at framing VanDyke’s dicking around as “postmodern judging”:
That’s where Lawrence VanDyke of the U.S. Court of Appeals for the Ninth Circuit comes in. Through a series of separate writings VanDyke has adopted a postmodern approach to the circuit-court opinion genre that ironically turns the text against itself. He has embraced the fact that an opinion as opinion can have meaning beyond the arguments it presents. His is an ironical approach to the practice of judging deployed in support of deeply sincere normative legal views. It’s an approach that can be disturbing to those with a traditional view of the judicial enterprise and that is truly unique in the federal judiciary.
Cool story, but there’s only so much lipstick you can put on a pig. First, author Michael Fragoso does a poor job of defining his terms. Sure, there’s a litany of decorum-breaking things VanDyke did that get passed off as ironic, facially cogent arguments taking on additional meaning when you look at them from a distance, but unless we’re about to retcon Johnathan Swift’s A Modest Proposal as postmodern policy making, there’s no need to ring the postmodern bell. We should just call things what they are: stupid. Take this for example:
In it he observed that, having issued a pro-Second Amendment opinion, he knew it would be taken en banc, so he would save the eventual en banc court the trouble of writing an opinion and just write it himself. Van Dyke proceeded to lay out a perfectly passible anti-gun opinion overruling what he just wrote. He plays the opinion straight, so it doesn’t fight the joke, because—as with Olympus Spa—it’s not about the legal arguments but about the absurdity of their use. It was the existence of his draft future opinion, not its arguments, that exposed the court’s real power structure.
One of the smartest lawyers I know called me after reading his concurrence and called it brilliant. “It’s checkmate,” he explained. “How are they going to write the en banc opinion now? It’s going to look just like his and prove his point.”
Get to know smarter lawyers, dude. This is not the “9TH CIRCUIT GETS OPINIONMOGGED BY VANDYKE!” moment you think it is. This might come as a surprise, considering the recent uptick in weird decisions that are covert auditions for the next empty Supreme Court seat, but judicial opinions are supposed to be boring and fungible things. For example, most Supreme Court decisions in recent history have been 9-0s, it’s just that the splits tend to get more media coverage because people love a good catfight. And if you want to look for someone to “expose the court’s real power structure,” why would you go to a judge who couldn’t even get a qualified rating from the ABA when you can go to a political scientist? Not all modern problems require postmodern solutions. I mean, come on:
All of these separate writings are not about particular laws but about the law. It’s not about using the text of his opinions to argue doctrinal points but about using the opinions as text to critique — one is tempted to say problematize — the Ninth Circuit’s judicial enterprise.
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VanDyke uses the concept of opinion-writing to push the boundaries of what judging will allow.
Is the guy a circuit judge or a comparative literature student working on his MA? Judges shouldn’t get points for dramatic outbursts that amount to “Look what I can do!”
Fragoso goes on to say that “certainly no one on the left is playing at VanDyke’s level.” No shit, friendo. It’s a job, not performance art, and there’s less of an incentive to play when the Executive’s response to being asked to speak out against violence toward judges was to double down by calling left-leaning judges dangerous lunatics and declaring war on “rogue” judges. Are you interested in the court and power structures or not?
What’s the ultimate point of framing VanDyke as a postmodern judge rather than some unqualified hack doing Stuart impersonations from the bench?
I don’t know, and Fragoso doesn’t appear to either:
What effect all this will have on the law is hard to say. VanDyke’s approach is relatively limited in its aims and therefore probably harmless, at least structurally.
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But something like HLA Hart’s rules of recognition undergird the ability of the courts to maintain their authority, and there is danger in chipping away at that conceptual scaffolding.
So at best nothing and at worse contributes to a collapse in judicial legitimacy. Some game to be playing! If this is the cost of owning the libs, maybe he should just do his damned job.
This article may have been too serious of a response when laughter would have sufficed:
While it is undoubtedly funny to see right-wingers so desperate to justify shitty judging that they’re treating Pierre Schlag like he wrote Of Grammatology, it is worth noting that there is a growing number of right-wingers who advocate for right-wing positions (traditional left/right distinctions get harder as metanarratives crumble) in postmodernese. That is to say a right-wing postmodern endorsement of VanDyke could have been better than this — or are you reactives too lazy to break out the Nick Land?
Be on the lookout for stupidity in postmodern clothing. And VanDyke, if you’re reading this, you’d probably be a lot more convincing if you relied on well-crafted arguments rather than jazz hand opinions.
The Postmodern Jurisprudence of Lawrence VanDyke [National Review]
Earlier: We Need To Talk About What The VanDyke Video Dissent Gets Right
‘We Are Better Than This,’ Say Ninth Circuit Judges Despite All Evidence To The Contrary
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s . He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boat builder who is learning to swim and is interested in rhetoric, Spinozists and humor. Getting back in to cycling wouldn’t hurt either. You can reach him by email at [email protected] and by tweet at @WritesForRent.