The Fact That Judge VanDyke Is Sincerely Transphobic Doesn't Mean He Isn't Auditioning For A SCOTUS Nomination

My latest Verdict column is titled From “Fuck the Draft” to “Swinging Dicks”: Appropriate and Inappropriate Vulgarity in Judicial Opinions. It discusses the already-notorious dissent from the denial of en banc reconsideration by Ninth Circuit Judge Lawrence VanDyke in Olympus Spa v. Andretti. As I explain in the column, there are two main differences between the use of the phrase "Fuck the Draft" by the lawyer and in the eventual Supreme Court opinion in Cohen v. California versus Judge VanDyke's use of the phrase "swinging dicks" in his Olympus Spa dissent: First, in Cohen, the question whether the phrase "Fuck the Draft" (written on a jacket worn by the petitioner) was protected free speech was the very heart of the case, whereas Judge VanDyke gratuitously introduced the vulgar "swinging dicks" into Olympus Spa. Second, although no doubt some sensibilities were offended by Cohen's display and its role in Supreme Court litigation, it did not target anyone, whereas Judge VanDyke's dissent bristles with transphobic animus. As I note in the column with a string of quotations, that animus manifests in many ways, including but hardly limited to his use of "swinging dicks." The dissent thus confirms the American Bar Association's warning upon Judge VanDyke's nomination that he would not do equal justice to LGBTQ litigants.

In this essay, I want to address a suggestion that various commentators have made regarding Judge VanDyke's dissent: that it is an effort to attract the attention of Donald Trump and those around him responsible for Supreme Court nominations in the event that a vacancy opens, possibly very soon, given rumors that Justice Alito is considering retiring. Needless to say, I do not know exactly what the subjective mental process of Judge VanDyke was when he wrote his dissent or when, after seeing that he had earned a rebuke from many of his Ninth Circuit colleagues, including other very conservative judges, he opted to leave the offending language unchanged. However, neither does anyone else other than Judge VanDyke know what exactly his motives were.

Let's start with the affirmative case for thinking that the Olympus Spa dissent could have been an audition. For most presidents, the fact that a judge was chastised by a great many of his colleagues, including those aligned with him ideologically, for introducing a vulgar term into a dissent would count rather strongly against picking that judge as a SCOTUS nominee. Needless to say, however, Donald Trump is not most presidents. He is a notorious vulgarian.

I doubt that Trump has strong personal views about transgender status, but he knows a wedge issue when he sees one. Having spent many millions of dollars on anti-trans ads during the 2024 campaign, Trump might well think that his base would feel rewarded by the SCOTUS nomination of a judge with very strong anti-trans bona fides. Meanwhile, Trump could well view Judge VanDyke's willingness to tell it like it is rather than succumb to wokeness as a further virtue. The ABA letter that rated Judge VanDyke "not qualified" for the position he currently holds acknowledged that he "is clearly smart." He is surely smart enough to have guessed that vulgar language in the service of a hot-button right-wing cause could improve his standing with this White House.

But wait. Professor Josh Blackman writes on The Volokh Conspiracy that Judge VanDyke "most certainly is not" auditioning for the Supreme Court. How can he be so certain? He asks readers to watch an interview he conducted of Judge VanDyke at a Federalist Society event. I watched the interview and remain unmoved. At one point in the interview, Judge VanDyke says he isn't "politically savvy." At another point he tells the audience of law students that they should follow his lead and stick by their principles. He says "don't be a squish just so you can get picked for something." Presumably Professor Blackman was referring to statements such as these, but it is well known that disclaiming ambition and claiming to act only on principle are part of a very common strategy used by ambitious people to advance their careers.

In addition to citing his own interview with Judge VanDyke, Professor Blackman says this: "After this opinion," i.e. the Olympus Spa dissent, "you should have no doubts. He truly believes what he is writing, and uses his pen to advance his understanding of the law."

That is both wrong and a non sequitur. It's wrong because, as noted above, Judge VanDyke's Olympus Spa dissent could very well increase the odds that President Trump nominates him to the Supreme Court. It's a non sequitur because Judge VanDyke probably does believe wholeheartedly in the trans-bashing of his Olympus Spa dissent, also believes that his vulgarity advances his vision of the law, and also thinks that publishing it will help him get to the Supreme Court.

Professor Blackman implicitly suggests that only someone who insincerely espouses bigotry to curry favor with Donald Trump can be fairly called a careerist. That suggestion is plainly at odds with the reality that the second Trump administration includes no shortage of careerists who are also sincere bigots.

Finally, in saying that Judge VanDyke's Olympus Spa dissent might well advance the case for his SCOTUS nomination, I am not predicting that the next nomination, if it comes from President Trump, will go to Judge VanDyke. After all, he faces stiff competition from a deep bench (pun intended) of careerist judges who sincerely hold awful views.

—Michael C. Dorf