Judge Lawrence VanDyke of the Ninth Circuit was appointed to his current post in 2020 and, since then, has been no stranger to the spotlight. Judge VanDyke is the rare federal judge who regularly makes headlines for his opinions, often dissents that stridently attack or satirize the views of his colleagues (the circuit itself remains majority Democrat-appointed).
Many of Judge VanDyke’s most controversial opinions have come in Second Amendment cases, including his video dissent from the circuit’s en banc decision in Duncan v. Bonta upholding California’s large-capacity magazine ban and his concurrence to his own panel majority ruling in a COVID-era gun store closure case with a “mock” en banc opinion overruling himself (Jake covered that concurrence here). In this post, I hope to explain why—in my view—Judge VanDyke’s approach pursues publicity at a grave cost, especially in gun cases.
Earlier this month, Judge VanDyke again made waves by using vulgar language for effect while dissenting from the denial of rehearing en banc in a First Amendment challenge to Washington state’s use of its anti-discrimination rules to penalize a women-only nude Korean spa for refusing to admit a transgender woman. While I won’t rehash the background of the case here, VanDyke’s dissent opened with the following line: “This is a case about swinging dicks.” And VanDyke went on, in response to almost universal condemnation from his fellow circuit judges, to write that:
My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit [no such sensibilities] . . . when it comes to the government trampling on religious liberties.
The dissent provoked reactions from both legal academics and the mainstream media. Some argue that VanDyke is auditioning to be President Trump’s next Supreme Court appointee, should he get the chance—perhaps if Justice Alito or Justice Thomas retires within the next two years. Others aren’t so sure, suggesting that “[h]e truly believes what he is writing, and uses his pen to advance his understanding of the law.” Most, but not all, condemn VanDyke’s vulgarity as his colleagues did, either as objectionable in and of itself or especially unlikely to garner support from those who matter (within or outside of the judiciary).
Personally, I increasingly doubt that this is merely, or mostly, an instance of judicial auditioning. For one, at least with respect to his writing style, VanDyke is moving further and further away from both Trump’s prior nominees and from the Justices he would potentially replace. Although some of these judges certainly have idiosyncratic views coded as strongly conservative, they are traditional jurists who seek to persuade and convince. They are not, however, exhibitionists.
Rather, Judge VanDyke appears to take a “post-modern” approach wherein the opinion itself serves as a sort of performance art. This, at least, is the account recently offered by Michael Fragoso, former chief counsel to Senator Mitch McConnell. I find Fragoso’s analysis largely compelling. The judge, Fragoso says, “embrace[s] the fact that an opinion as opinion can have meaning beyond the arguments it presents.” VanDyke’s opinions are often “detached” and engage in “meta-analysis.” by focusing their energy on the judicial opinions in the case rather than the facts, the parties, and the nature of the legal disputes.
To VanDyke, judging is a spectacle rather than an exercise in argumentation or persuasion. In Fragoso’s words, “[i]t’s not about using the text of his opinions to argue doctrinal points but about using the opinions as text to critique” and “to push the boundaries of what judging will allow.” The opinion isn’t designed primarily to convince people (other judges, lawyers, or members of the public) that he’s right by using traditional tools of persuasion; rather, the goal is to lay bare the purported absurdity of the opposing position. The end result might still be that readers are won over to VanDyke’s position. For example, Van Dyke’s mock en banc reversal in the COVID gun-store-closure case was highly effective in drawing attention to the Ninth Circuit’s general approach to gun cases, especially after the en banc court proceeded to vacate the panel decision, rehear the case, and then remand it back to the district court. But the persuasion was primarily on the level of meta-criticism of the court’s own actions, as opposed to persuading readers that the county’s orders actually violated the Second Amendment.
This strikes me as mostly correct. VanDyke’s approach is markedly different from other judges whose names are often raised for inclusion on any short list, should President Trump fill another Supreme Court vacancy. Those judges, again often in gun cases, push the envelope of how they can operate as appellate judges within the federal legal system and longstanding norms that govern that system. For example, Fifth Circuit Judge Jim Ho—a stalwart conservative—who, even when he takes an extreme position operates within the traditional norms and framework of appellate judging and opinion writing. His concurrence in the final circuit decision in the Rahimi case, which affirmed Zackey Rahimi’s conviction after the U.S. Supreme Court rejected his constitutional challenge, exemplifies this dynamic. Ho concurred to argue that the circuit had “faithfully applied” Bruen in the case initially—despite the Supreme Court’s subsequent reversal—and to express his continued doubts about the constitutionality of the federal ban on gun possession for those under domestic violence restraining orders. Ho’s concurrence was unusual and aggressive in its tone, suggesting that the circuit got everything right and it was the Justices who had fumbled by subtly modifying the legal test. But Ho operated entirely within the confines of the appellate system, albeit begrudgingly, and sought to tell (rather than show) the reader that his analysis was ultimately correct regardless of the Supreme Court’s decision.
And Ho isn’t alone—many Trump-appointed judges have made headlines for their strident rhetoric and aggressiveness in pushing certain legal and policy arguments. VanDyke, by contrast, is operating on a different plane: his opinions are designed to show the apparent absurdity of the judicial system as a whole. It seems the idea is not “let me convince you I am right and the majority is wrong,” but rather “the entire structure that produced this majority ruling is absurd, so of course the result is also suspect.” As a result, the federal court system becomes a sideshow, only there to serve as a caricature of “justice,” with the primary focus on VanDyke’s writing or video appearance (as the case may be). It’s judging as theater, with the judge taking the place of the actual dispute and the parties, aiming to convince the reader that the entire system is a farce. And VanDyke is pointedly using mediums, such as YouTube, that are far more likely to reach average Americans than traditional written opinions. Not only is VanDyke waging war against the judicial system, he’s seeking support in that enterprise from actors outside the federal judiciary.
The dangers of co-called “post-modern judging” should be facially obvious. Perhaps foremost among them is the issue Fragoso raises in conclusion but proceeds to largely dismiss: there is profound “danger in its replication” for the legitimacy of federal courts. Judges’ authority stems primarily from their appearance of neutrality and the idea that they decide cases by weighing the arguments and providing well-founded reasons for ruling one way or another.
By contrast, judging as performance art, where the judge himself takes center stage and substantive arguments are a sideshow, is not sustainable on any scale without widespread deterioration of public trust in the entire system. At a time when almost everyone agrees the judiciary is under attack, from the executive branch in particular, opinions that paint judging as absurdity will only add fuel to the fire. And the entire approach elides the judicial imperative to provide well-founded reasons for the decision that is reached. As Micah Schwartzmann describes:
Decisions reached without regard to reasons are not responsive to the underlying conflict between the parties. The parties can therefore complain that the purpose of the adjudicative process has been corrupted or ignored. . . . The winning party may be pleased with the outcome. But even the winner may realize that the decision was reached incorrectly or, worse yet, illegitimately.
Think of the spa owners in Olympus Spa or the gunowner plaintiffs in Duncan. Both will certainly agree with Judge VanDyke’s position in their respective cases, but it’s easy to imagine they could have lingering doubts about how and why Judge VanDyke arrived at that position. That’s because, even though VanDyke is nominally on their side in these cases, that nature of his opinions suggests the normal adjudicative process has been ignored or subsumed by a desire for publicity.
Second, history suggests a post-modern approach to judging is not effective. Justices Scalia and Thomas, for example, did not rise to prominence by caricaturing the judicial system that produced majorities that kept them in dissent for much of their careers. Rather, they sharpened their reason-giving while writing in dissent and ultimately (one could at least argue) convinced a growing number of young lawyers and law students that their legal views were substantively correct. For his part, too, Justice Scalia aimed to do so through plain language—to make the process, the facts, and the law digestible for any reader—lawyer and layman alike. Judge VanDyke’s approach, by contrast, seems profoundly short-sighted: “I can’t stand to write in dissent any longer, so let’s tear it all down.” Perhaps understandable (albeit unadvisable) for a long-serving conservative judge on the Ninth Circuit, but not one with a grant total of six years’ experience on the federal bench.
What’s more, post-modern judging is in many instances self-defeating. The post-modern judge will quickly lose the ability to persuade through traditional reason-giving and legal analysis—no matter the merit of those arguments. The post-modern judge is “the judge who cried wolf.” As soon as the judge’s delivery itself takes center stage, the force of any substantive arguments is undercut because the conversation has shifted to the nature of the opinion.
This point brings me back to guns and the Second Amendment. Take Judge VanDyke’s video dissent in Duncan, for example. He may well have a strong argument that California law defines a “firearm” in such a limited way that no physical component of the gun is actually protected. That would violate the Second Amendment, and it echoes a long-running critique of the federal judiciary by gun-rights advocates: on balance, federal judges are anti-gun and willing to distort precedent to rule in that way. The critique, in my view, increasingly lacks merit given Trump’s judicial appointments. But federal judges might, in fact, lack personal experience with firearms and might benefit from technical knowledge in gun cases from their colleagues on the bench.
Or take Judge VanDyke’s dissent in Teter v. Lopez, a Second Amendment challenge to Hawaii’s butterfly knife ban. The dissent may read to some like a traditional legal argument regarding the mootness doctrine. VanDyke argued that government parties should not be able to moot legal challenges and automatically vacate adverse panel decisions simply by amending laws while the case is on appeal. But Judge VanDyke also says the quiet part out loud: his focus is on “mischief” and “perverse incentives”; the absurdity of business as usual in the federal judiciary. This view is more clearly on display in his dissent from the grant of en banc rehearing in a recent immigration case, where he described life in the Ninth Circuit by reference to the fictional “Circuit of Wackadoo.”
To the extent Judge VanDyke has serious legal arguments about the treatment of firearm accessories, the mootness doctrine, or the en banc procedures of the Ninth Circuit, those messages are substantially undercut by his method of delivery. The video itself is the point; the opinion itself is the performance. And any actual reason-giving falls entirely by the wayside. One can only hope that newly appointed federal judges see Judge VanDyke as a cautionary tale rather than a jurist to be emulated.
