Federal Judges Are Begging Lawrence VanDyke to Stop Being Thirsty and Gross

Olympus Spa v. Armstrong is not, as Judge Lawrence VanDyke claimed last week in an honest-to-God federal court opinion, “a case about swinging dicks.” 

Olympus Spa operates two Korean spas in Washington state that limit their services to “biological women,” and deny entry to trans women who haven’t undergone gender confirmation surgery. So in 2020, the state’s Human Rights Commission started investigating Olympus Spa for violating the state’s nondiscrimination law, which prohibits businesses from discriminating on the basis of gender expression or identity. Olympus Spa’s owners, who are Christian, then sued state officials, arguing that the law violated their First Amendment rights to freedom of speech, religion, and association.

Federal courts dismissed the complaint. This is unsurprising, since the First Amendment doesn’t give business owners a right to put up “WHITES ONLY” signs, either. Yet VanDyke was shocked, and penned a vulgar standalone dissent from the full Ninth Circuit Court of Appeals’s decision declining to rehear the Spa’s appeal. Twenty-nine other judges on the Ninth Circuit, appointed by every president from Bill Clinton to Donald Trump, published multiple statements denouncing VanDyke’s gross diatribe—a rare, sweeping rebuke of a fellow judge’s antics.

Although VanDyke admitted in his dissent that “swinging dicks shouldn’t appear in a judicial opinion,” he argued that any distress the reader experienced from seeing his words was much less than that of the customers and staff at the spa who may be “visually assaulted by the real thing.” (Korean spas traditionally require customers to be nude.) Throughout his opinion, VanDyke misgendered trans women and conflated them with sexual predators, criticizing his colleagues for empowering “sexually deviant men to prey upon vulnerable women and girls.” He further accused the “woke judges” in the majority of having “collectively lost their minds,” and of using “dignified and civil words” to “mask a legal abomination.”

As a reminder, the “abomination” in question is a holding that the First Amendment does not provide relief from a generally-applicable civil rights statute. If Olympus Spa were a private club, rather than a business held open to the public, the matter would likely be different. But rather than apply the law to the facts, VanDyke applied his head to the inside of his own ass, suggesting that the majority was conducting “Frankenstein social experiments” and sacrificing constitutional rights “on the altar of social progress.”

Judge Margaret McKeown authored the first of three statements criticizing VanDyke’s puerile performance. Joined by 26 other judges, McKeown said that “coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion.” She further argued that VanDyke’s derisive comments about his colleagues made the Ninth Circuit “sound like juveniles, not judges” and “undermines public trust in the courts.”

McKeown also authored a second statement, joined by a six-judge subset of the 26 judges who joined her previous opinion, which emphasized VanDyke’s many mischaracterizations of the relevant law and facts. His dissent pushed theories about the First Amendment that “the Spa never presented,” for example, and argued about exemptions to the nondiscrimination law that “the Spa never claimed.” VanDyke’s opinion is filled with assertions that “describe a case entirely different from the one presented,” she said.

The third statement, by Judges John Owens and Danielle Forrest, was a single sentence. “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”

Some of them may be better. VanDyke is not. Dozens of civil rights organizations opposed his judicial nomination in late 2019, arguing that VanDyke spent his whole career “disparaging and opposing LGBT protections at every turn.” The American Bar Association gave VanDyke a rating of “Not Qualified” after interviewing 60 people who worked with him, who questioned his ability to be fair to LGBTQ litigants and his basic knowledge of day-to-day practice, noting that he didn’t bother to prepare for cases if he didn’t have “a particular personal or political interest.” Interviewees described VanDyke as “arrogant,” “lazy,” and “an ideologue.” When presented with that evaluation at his Senate confirmation hearing, VanDyke started crying.

But in his six years on the Ninth Circuit, VanDyke has pulled multiple stunts that underscore the accuracy of the ABA’s assessment. Last year, for instance, he published a bizarre dissent-via-YouTube in a Second Amendment case: The majority upheld California’s ban on large-capacity magazines as constitutional, and VanDyke apparently thought the appropriate way to express his difference in legal opinion was with a 19-minute video of him robed in chambers assembling and disassembling guns. 

This is, obviously, not normal behavior, and actual judges have had enough. McKeown specifically mentioned “publicity” in the 27-judge statement condemning VanDyke’s Olympus Spa v. Armstrong dissent. This shows widespread recognition that VanDyke, who was on Trump’s first term shortlist for Supreme Court nominations, is deliberately playing for the attention of a crass crowd. 

The legal system suffers when judges are pigheaded on purpose. But the conservative media ecosystem can’t get enough of it. Michael Fragoso, former chief counsel to Senate Republican Leader Mitch McConnell, praised VanDyke’s “postmodern jurisprudence” in the National Review, claiming that his dissent exposed the “hypocrisy” of the majority’s argument. The Federalist similarly cheered VanDyke’s trollishness and argued that his colleagues were exhibiting “fake horror at crude words used to describe abominable realities.” 

VanDyke is one of hundreds of judges whom Trump has appointed to federal courts. For those with higher judicial aspirations, there is a crowded field from which to distinguish oneself. Embracing crank behavior from the bench allows VanDyke to receive the attention and approval he craves from the audiences about which he cares the most. And as Trump publicly laments appointing people to the Supreme Court who occasionally depart from right-wing orthodoxy, VanDyke has every incentive to show the president that he won’t regret giving him a promotion.