VanDyke Unapologetic Over Colorful Dissents That Irk Colleagues

Judge Lawrence VanDyke offered a full-throated defense of his controversial and colorful dissents he’s issued on the Ninth Circuit, saying they’re meant to call out what he characterized as misbehavior by his colleagues on the federal appeals court.

VanDyke spoke at the conservative Federalist Society’s National Student Symposium on March 14, one day after he used the phrase “swinging dicks” in a dissent over a spa’s bid to bar transgender women from its facilities. The judge repeatedly made reference to that opinion during his speech, joking that it would be a “PG performance.”

VanDyke said that dissent, as well as others, is his attempt to draw attention to instances where he believes judges are imposing their personal policy beliefs in cases instead of following the law, and that he plans to stick with the practice unless someone offers a better solution. He said the unofficial title of his talk is, “How judges should behave, and why I don’t.”

The Donald Trump appointee has made waves for his sharply written dissents against his colleagues. They include references to a “Circuit of Wackadoo” to a video opinion filmed in his chambers in which he demonstrated the different components of handguns. VanDyke was roundly criticized by his colleagues over spa case dissent, and has faced public pushback for other writings.

VanDyke stood by his actions during the speech. He said the Founders believed the judiciary should have a subsidiary role, but courts have shifted further from that vision. “The supposed wisdom of judges is not some panacea we can turn to to rectify all the supposed follies of legislative and executive actors,” he said.

And he said that even if most judges are attempting to embody that restrained role, they’re “outmaneuvered and bound by a minority of judges willing to set precedent that smuggles in those judges’ political, moral, and social views.”

Judges shouldn’t have the final word on policy, VanDyke said. Still, “it feels like today every time the current administration so much as breathes someone’s calling it into court,” leading to a “flurry of lower court injunctions,” he added.

VanDyke said that Ninth Circuit judges have “routinely imposed their personal policy preferences on the law. He particularly took issue with the historically liberal appeals court’s approach to immigration and Second Amendment cases.

He said the bulk of the circuit’s cases aren’t ideologically sensitive, and that he tries not to write heated or controversial dissents when he thinks his colleagues have committed a good faith error in their reading of the law. VanDyke also said that he likes his fellow judges, and values collegiality.

And while he knows his divisive writings come at a cost, he doesn’t feel a typical dissent is always appropriate. “Sometimes, when I’m 100% confident that either my current or past colleagues have simply applied their policy preferences in cases before us, I will do something different,” VanDyke said.

He said he views his colorful dissents as a form of whistleblowing, and will keep doing it even when colleagues who share his views on the judicial role urge him not to.

“If I don’t have some way to flag when I think my colleagues are genuinely misbehaving, not just making good-faith errors, I think that misbehavior is more likely to fly under the radar,” VanDyke said. “As courts more and more noticeably deviated from the Founders’ conception of the judiciary’s role, I think there may need to be a corresponding increase in the volume and creativity with which other judges try to flag and rein in the abuse, blow the whistle.”

Some criticize him for undermining the perceived legitimacy of the courts, VanDyke said. And while he recognizes how important that perception is, he said he also values “actual legitimacy.”

“So I offer this deal to my misbehaving colleagues,” VanDyke said. “You stop breaking the norm of how our system was designed to work, and I’ll stop breaking those norms that promote collegiality and the perception of legitimacy.”