Performative Jackassery, Civility, and Public Confidence in the Judiciary

A Theory of MAGA Judging

I thought about not writing something about the opinion by Ninth Circuit Judge Lawrence Van Dyke, dissenting from the court’s denial of a petition for rehearing en banc in Olympus Spa v. Armstrong, in which the judge made several references to pendulous genitalia. The case has been all over the legal news, but that doesn’t necessarily mean it’s interesting.

But I concluded I can’t avoid this for a couple of reasons. For one, I clerked on the Ninth Circuit, in a time with the court was split 10-10 Republican-Democratic appointees, and had some very feisty battles over taking a case en banc. Yet I can’t imagine any of the judges coming anywhere close to Judge Van Dyke’s juvenile acting out in this case. Clearly something has changed in legal culture, and it’s not ideological polarization. (Almost all of the issues in the Olympic Spa case would have been familiar to the court back in 1996.) More importantly, though, I’m writing because I think I figured out something about MAGA judges, as distinct from judges appointed by Trump, which I continue to insist are different categories. See what you think of m explanation of Judge Van Dyke’s dissent.

The case arose out of a state civil rights complaint against a Korean spa (“Korean” being important because in this context it means “you go naked” – see the dissenting panel opinion for details about this traditional cultural practice) for not allowing a transgender woman to use the facilities, in violation of a state public accommodation statute that prohibited discrimination on the basis of sexual orientation, with implementing regs stating that sexual orientation included gender identity. The spa sued claiming that the statute violated its First Amendment rights, under cases like 303 Creative and Masterpiece Cakeshop. The Ninth Circuit panel majority found that the statute does not aim at the message conveyed by the business but at conduct; therefore, it applied intermediate scrutiny and held that the the statute did not impermissibly burden free speech.

Regarding the spa’s claim that the statute violated its free exercise rights, the panel concluded that the statute was a neutral law of general applicability, not motivated by hostility to a religious message or practice. It therefore applied rational basis review and, in common with many cases upholding public accommodation statutes as against this type of challenge, concluded that enforcing the statute did not violate the First Amendment.

Judge Lee, dissenting from the panel’s decision, explained why the application of the public accommodation statute to the spa caused real problems for the business, in light of the cultural traditions involved:

The Spa limits entry to biological women and post-operative transgender women (i.e., people who were born biological males but underwent sex-reassignment operations). The Spa will treat biological women and post-operative transgender women of any sexual orientation, race, religion, or any other protected status. To put it plainly, Olympus Spa—a female-only spa—provides services to anyone without male genitalia.

As Sun Lee explained, the Spa’s entry policy creates an intimate, safe, and private jjimjilbang for women to receive traditional Korean spa services. Because Korean tradition mandates sex-segregated facilities, the Spa considers this policy necessary to remain true to its cultural heritage. And given that the Spa provides services to girls as young as thirteen, Sun Lee believes the Spa has a responsibility to safeguard the privacy of those minors.

That of makes a certain amount of sense. I can see how someone who cared a lot about this traditional practice would think it’s kind of stupid to apply a public accommodation statute, along with the regs including gender identity, to this spa. But here’s the thing: Haven’t we been lectured by conservatives for years that (1) legislation reflects the will of the people much better than decisions by unelected judges; (2) textualism is the method of statutory interpretation that best represents the intent of the legislature because the text is what is voted on; and (3) democratically accountable legislatures have a right to pass stupid laws and courts shouldn’t invalidate them just because they’re stupid? I dunno, that sounds like the Scalia, Easterbrook, Manning line on the respective role of courts and legislatures. I see where the dissent is coming from, and I can see why some judges voted to take the case en banc. But there was a vote, fair and square, and rehearing en banc was denied.

It was this decision that led to the conniption from Judge Van Dyke:

This is a case about swinging dicks. The Christian owners of Olympus Spa— a traditional Korean, women-only, nude spa—understandably don’t want them in their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit.

You may think that swinging dicks shouldn’t appear in a judicial opinion. You’re not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa— some as young as thirteen—to be visually assaulted by the real thing.

To which the chief judge and 16 other active judges on the court had this to say:

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. Nor is it a place to suggest that fellow judges have “collectively lost their minds,” or that they are “woke judges[]” “complicit” in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent’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 lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.

(The highlighted language will be important to my argument to follow about how to understand this episode.)

Judge Van Dyke’s response was that this is just a bunch of liberal pearl-clutching:

My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion . . . . Yes, the introduction to this dissent intentionally uses indecorous language. But that is quite literally what this case is about. Male genitalia is precisely (and only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary.

The question naturally arises, is Judge Van Dyke okay?

What’s the Point?

One common response to the question of what’s wrong with Judge Van Dyke – and this is not to suggest it’s wrong – is that he, like Fifth Circuit Judge James Ho (whose law review article full of manufactured outrage I wrote about here), is auditioning for the next open Supreme Court seat. Donald Trump, being the world’s highest-profile shitposter, might just go in for this sort of thing and nominate someone like himself to fill that vacancy. My colleague Mike Dorf considers this theory in Dorf on Law, and there’s probably a great deal to that explanation. (According to David Lat’s Substack, Adrian Vermeue, Dahlia Lithwick, and Mark Joseph Stern have also suggested this explanation. They all seem to think it was counterproductive from that point of view. )

This is not the first weird dissent from Judge Van Dyke. Last year he dissented from an en banc court decision upholding a state ban on large-capacity magazine for handguns, and made a supplemental video, which he posted to YouTube, explaining the parts of a gun [WSJ gift link].

A concurring opinion couldn’t quite figure out what to do with this: Was it expert testimony from someone not qualified as an expert, which anyway couldn’t be considered at the appellate level? Was it a fact of which the court was supposed to take judicial notice? Was it just a novel means of persuasion? Judge Van Dyke said he was a brave truth-teller, accruing the majority of

intentionally blinding itself to my conceptual point [which] appears to be a bad case of intentionally avoiding the forest by fixating on the trees.

Similarly, in the Korean spa case, Judge Van Dyke labors hard to make himself sound like the kid in the fable who’s the only one in the crowd unafraid to say the emperor has no clothes:

Yes, the introduction to this dissent intentionally uses indecorous language. But that is quite literally what this case is about. Male genitalia is precisely (and only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary. The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion. The “ordinary Americans” affected by the majority’s opinion don’t have that luxury. Squirm as we might, I think it’s only fair for our court to have a small taste of its own medicine.

An interesting take on the Korean spa case, floated by National Review legal columnist Andrew Fragoso, is that Judge Van Dyke’s dissent is actually a brilliant jurisprudential argument, which depends on the dangling phallus reference to demonstrate that “an opinion as opinion can have meaning beyond the arguments it presents.” The dissent is actually an ironic performance that demonstrates the incorrectness of the majority’s opinion by revealing the hypocrisy of being offended by potty talk while at the same time approving of the result required by the Washington State statute. The medium here, of a judicial opinion, conveys the message that judges frequently impose their own preferences or political agendas on legal decisions. Paging Marshall McCluhan!

Internal Delegitimization

I have a theory about Judge Van Dyke’s dissent which is somewhere in the neighborhood of that explanation, but sharpens it somewhat with reference to the playbook of autocratic legalism. One of the key scholarly resources for understanding the second Trump administration is Princeton sociologist Kim Scheppele’s concept of autocratic legalism – see 85 U. Chi. L. Rev. 545 (2018). Scheppele’s important insight is that “autocrats who hijack constitutions seek to benefit from the superficial appearance of both democracy and legality within their states.” An autocratic executive could openly defy legal institutions, as Andrew Jackson reportedly said in response to the Supreme Court’s decision prohibiting his Cherokee land grab, “John Marshall has made his decision; now let him enforce it.” Emil Bove, then a senior DOJ official, notoriously instructed lawyers under his supervision to fell courts to fuck off if ordered by courts to comply with judicial orders enjoining deportations.

How does an autocrat undermine judicial independence and undercut courts as a constraint on the exercise of government power? The administration’s major strategy to delegitimize judicial review of executive action as simply politics by other means. Judicial independence presupposes that law can be differentiated from politics – otherwise, why recognize the judiciary as a separate branch of government?

The signature rhetorical move of Donald Trump and his administration has been to relentlessly accuse his adversaries and critics of doing the same thing his supporters are doing. Familiar examples include rigging elections, fake news, weaponizing legal processes, targeting political opponents for unjust “witch hunt” prosecutions, and interfering with the independence of the Justice Department. As Scheppele would describe it, this is public-relations strategy for ” attacking the very basis of a constitutional order while using the methods made possible by that constitutional order.”

Trump and many government officials, including Stephen Miller, Pam Bondi, and Todd Blanche, have been relentless in attacking “highly politicized” courts or, in Trump’s distinctive vocabulary and capitalization practices, “a Wacky, Nasty, Crooked, and totally Out of Control Judge” (referring to District Judge James Boasberg). That’s pretty much business as usual by this point with Trump. But what if a Trump-aligned judge could provide a distinctive form of this criticism, by purporting to speak as a courageous, whistleblowing insider, privy to special knowledge of the way in which purportedly neutral judges of engaging in politics under the guise of legal analysis? That would be an inside job – a MAGA aligned judge who’s doing Trump’s work for him.

But what if merely saying those things wasn’t enough? Maybe a MAGA judge could do even more to undermine the judiciary by acting like the whole thing is a joke. An analogy might be to the use of trials as political theater. When I started teaching a long time ago, legal ethics teachers still talked about the Chicago Seven trial, involving charges against activists who had protested against the Vietnam war at the 1968 Democratic National Convention. One of the standard observations about the trial was that the defendants, and their lawyers, including legendary civil rights lawyer William Kunstler, turned it into a circus, thereby provoking the presiding judge into overreacting and entering harsh rulings that led some observers to question the legitimacy of the proceedings. It was a strategy meant to demonstrate the corruption of the system of justice. Did the behavior of the defense undermine public confidence in the legal system? Yes, and that was precisely the point.

And that’s precisely the point of Judge Van Dyke’s dissent. The concurring judges alleged he was undermining public confidence in the judiciary. To which Judge Van Dyke might respond, “that’s exactly what I was trying to do.”

A Different Sense of Civility

Judge Van Dyke’s “Victorian nun” argument trades on a common understanding of the importance of civility as being nice or avoiding offense. This allows him to turn the tables on his imaginary critics whose delicate sensibilities are hurt by his language – you know, the usual “liberal snowflakes” schtick.¹ But there’s a different, and to my mind much more serious, notion of civility that is violated by Judge Van Dyke’s juvenile posturing.

One of the most basic commitments of political liberalism – with a small “l,” as in committed to individual liberty – is that people undertake to give reasons to each other that they can understand and potentially endorse. When government officials exercise power, they undertake to explain their actions in a principled way. I’m hugely influenced by the later John Rawls, of Political Liberalism, including his idea of the duty of civility:

The duty of civility instructs [both government officials and ordinary citizens] to “be able to explain to one another on those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason.” . . . Citizens and officials should identify and sometimes publicly communicate suitable justifying reasons for their exercise of coercive political power, at least with respect to constitutional essentials and matters of basic justice. Public justification is “not simply valid reasoning, but argument addressed to others” (PL 465). It proceeds on the basis of public reasoning, that is, by way of ascertainable evidence and reasons and arguments drawn from a reasonable political conception of justice, consistent with the liberal principle of legitimacy based on the criterion of reciprocity.

“Duty of Civility,” Chapter 63 in The Cambridge Rawls Lexicon.

It is frequently asserted that the fundamental principle of judicial ethics is impartiality, in the sense of keeping an open mind and deciding cases on the merits. I’ve said this too, but the Judge Van Dyke episode reminded me of the importance of civility in the Rawlsian sense of commitment to giving reasons that take other participants in the discourse seriously as reasonable people. The spa case is actually a hard one from the point of view of first-order beliefs about rights and justice: It involves considerations of multiculturalism (what to do when traditional cultural practices conflict with the majority’s sense of justice), religion (how to accommodate the strongly held religious beliefs of some citizens when they lead to actions that interfere with the rights of others), and contested policy issues about gender and sexuality. In a case like this, judging requires a real effort to offer reasons that others, with whom one disagrees about these first-order policy issues, can accept.

On this way of understanding civility, Judge Van Dyke’s ethical failing, as a judge, is not simply being obnoxious, crude, or juvenile (although he is all of those things), but acting out in obnoxious, crude, and juvenile ways that implicitly deny that he has an obligation to offer justifying reasons that are sincerely addressed to others. The “criterion of reciprocity” is a manifestation of mutual respect. In the case of judging, the respect is that owed to other participants in a process intended to reach a decision based on facts, law, and interpretive methodologies that are shared, or can be shared.

This shared objective of reaching a reasoned decision is precisely what is denied by the worst rhetoric of Trump and his political allies. Judges aren’t supposed to be the president’s political allies, as Chief Justice Roberts’s recent comments emphasized. But what if a judge was helping do the president’s dirty work, by calling into question the commitment of the judiciary to reasoned decision-making? That would be a valuable contribution to the project of autocratic legalism.

There are any number of judges appointed by Trump who are not MAGA judges. (I try to persuade students of this when they’re applying for clerkships.) On the other hand, there are some real-deal MAGA judges. I’ve been trying to come up with a way to describe the difference between these two categories of Trump judges, and now I see that at least one useful distinction is that a judge who acts in ways that seem clearly intended to delegitimize the judiciary by acting in ways that performatively deny the commitment to principled reason-giving, is a MAGA judge.

1. No one who knows me would consider me a Victorian nun. I swear like a sailor and frequently quote the economic philosophy of the great Mojo Nixon, which cannot be done without using some colorful language (gonna make y’all follow that link). But there are contexts where I don’t think cursing is appropriate: In church, in class, in front of my grandma (when she was alive), or testifying as an expert or arguing a motion in a courtroom. These are different discursive communities than, say, shooting the shit with your friends. The ground rules for what’s appropriate vary by context. This is a stunningly obvious point that Judge Van Dyke is pretending, unconvincingly, not to understand, which means he understands it perfectly well.