A recent opinion by a judge on the U.S. Court of Appeals for the 9th Circuit is a contender for the most vulgar piece of judicial writing in the 300-plus-year history of recorded judicial decisions in the English language.
The opinion in Olympus Spa v. Andretti — a dissent from the 9th Circuit’s decision not to rehear a case involving a potential conflict between transgender rights and free exercise rights — opens with this astonishing sentence: “This is a case about swinging *****.”
Except Judge Lawrence VanDyke, an appointee of President Donald Trump, didn’t use asterisks.
VanDyke’s use of what 27 of his colleagues, in a separate opinion, called “vulgar barroom talk” isn’t merely a shocking departure from the norms of judicial language. Nor does it just simply “ignore ordinary principles of dignity and civility or demean the court,” as the other judges noted. It goes further: It denounces “woke regulators and complicit judges” for imposing their “Frankenstein social experiments on real women and young girls” — a tirade that reads as though it were lifted straight from a Trump anti-trans script.
VanDyke’s language undermines the very possibility of civil disagreement that is necessary to a constitutional democracy operating under the rule of law. It shows what can happen when Trumpian style, already toxic to democracy, infiltrates the courtroom.
At a moment when intense political polarization and social media have combined to make substantive conversations across differences so difficult as to seem almost impossible, courts have remained one of the last spaces where people can disagree intensely while still communicating civilly. The legal custom of zealous representation combined with mutual respect runs deep.
Shakespeare, who had his share of negative things to say about lawyers, nevertheless also had one character recommend, “Do as adversaries do in law, strive mightily, but eat and drink as friends.”
Breaking that social norm is hard to understand as anything other than a bid for attention by VanDyke — specifically, the attention of the president who appointed him and who might conceivably have the power to elevate him to the Supreme Court. The other judges hinted as much, stating VanDyke’s “use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion.”
The case in question arose from the state of Washington’s application of an anti-discrimination statute to require a Korean- owned spa that restricted access to “biological females” to permit access for a transgender woman. The owners of the spa, where clients are typically nude, went to court to request an exemption from the law on the basis of their Christian religious beliefs.
Whatever you might think of the policy wisdom of requiring the spa to comply with the anti-discrimination law, the constitutional issue is straightforward. Under Justice Antonin Scalia’s opinion in the 1990 case Employment Division v. Smith, there is no automatic religious exemption under the First Amendment from a law that is deemed neutral and generally applicable.
It would be understandable to dismiss VanDyke’s opinion as just another manifestation of what sometimes seems like the 9th Circuit’s resemblance to a judicial clown car. Perhaps that was the view of the two judges who responded in one sentence: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”
But the truth is VanDyke is channeling the president who appointed him: using particularly offensive language in a case involving a transgender woman, repudiating the principles of decorum and civility and treating the judiciary with contempt. Van Dyke ridiculed “my distressed colleagues” who, he wrote, “appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion.”
