Judge Lawrence VanDyke of the Ninth Circuit, is an unqualified hack. The ABA noted as much when it rated him “not qualified” upon his nomination, calling him “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” In response, the second Trump administration banned the ABA’s input on judicial qualifications. He has since spent his tenure confirming their prescience with a string of unhinged and juvenile dissents that have compared his colleagues to criminals, insulted them as “possessed,” and prompted pointed rebukes from his own court.
In Olympus Spa v. Armstrong, a discrimination case involving a women only spa that extended its ban to pre-operative transgender women in violation of state law, VanDyke authored a dissent, which opens thusly…
This is a case about swinging dicks.
Maybe it’s just me, but it feels as though something subtle changed when the intellectual lodestar of the conservative movement shifted from William F. Buckley to Kid Rock.
Other conservative judges on the panel wrote more substantive dissents, managing to avoid the phrase “swinging dicks” while laying out a vision of First Amendment religious protection that would allow business owners to discriminate on the basis of sex. The phrase also doesn’t really make sense to the extent “swinging dicks” is a colloquialism for aggressive, ego-driven men embarrassing themselves in childish displays of dominance. In a sense, this is a case about swinging dicks, but it describes exactly one person in this entire dispute, and it’s the total dick who typed it into his dissent to get this kind of attention in the first place.
VanDyke’s stream of consciousness dump reads sort of like Ulysses meets CPAC meets severe concussion patient, careening from its crude opening into calling his colleagues “woke judges,” who are “complicit” in harming women and girls, invoking President Trump and Asian American discrimination (neither of which have anything to do with the case), and vomiting up an Establishment Clause theory and a private club exemption… arguments of dubious value at any rate, but also arguments the spa never bothered to raise anyway.
Judge McKeown’s majority opinion, by contrast hewed carefully to the record. The spa owners never challenged the state’s discrimination law, but rather sued state officials claiming that the law’s enforcement was discriminatory. As Judge McKeown explains, “The Spa simply did not challenge the statute itself, and it is not our role to rewrite the statute.” Without taking out the statute itself, the burden on religious exercise was incidental to the regulation of conduct.
But Judge McKeown also authored a separate statement joined by 26 fellow judges, including the Chief Judge. It reads, in relevant part:
The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O’Connor put it, to “disagree without being disagreeable.” It is not a place for vulgar barroom talk.
The statement goes on to note that Van Dyke’s language “makes us sound like juveniles, not judges” and “undermines public trust in the courts.” Two additional judges filed a separate statement expressing Judge McKeown’s sentiment more tersely:
Regarding the dissenting opinion of Judge VanDyke: We are better than this.
Are we though? There are 51 active and senior judges on the Ninth Circuit. As impressive as it is to get 29 judges to join together to rebuke a colleague, that means 22 judges remained silent. They didn’t have to agree with the substance of the majority to sign onto a statement telling VanDyke to cut the crap and act like the federal judge he was never qualified to be. The Judge Owens statement gave those judges 12 simple, wholly partisan-free words to sign onto if they wished!
The fact of the matter is that the other 22 judges approve of this.
For every crass, undignified conservative out there jockeying for clicks like VanDyke, 10-20 more hang back posturing as “serious” Republicans while giggling softly. They are not actually serious and they do not actually see a problem with any of this. They enjoy keeping their hands clean while privately cheering on the Republican Party’s descent into the gutter. They don’t care that their more polite dissents end up next to low brow vulgarity because at the end of the day, VanDyke’s just saying what they can’t bring themselves to say out loud. VanDyke’s opinion uses the word complicit… well, this is what complicity looks like.
Unfortunately, the descent will continue to accelerate. When Donald Trump calls Leonard Leo a sleazebag, he’s not just earning The Onion meme, he’s declaring independence from the Federalist Society’s decades long mission of putting respectability lipstick on this reactionary pig. This administration doesn’t need well-heeled right-wing intellectuals — too many of them honor their oaths to the administration’s detriment — it needs swinging dick goons willing to move the idiocracy influencer culture into courthouses.
With the quiet approval of a lot of those supposedly higher minded conservatives.
(Opinions available on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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