The core debate in American jurisprudence for the last half century has been one of text versus policy. Liberals have favored an approach to the law that looks to the “purpose” of statutes and treats the Constitution as “living,” while conservatives have put forward methods of interpretation that cling to the statutory and constitutional text as written. At least for now, the conservatives seem to have won. The law is bounded by the text, which judges in turn construe.
This doesn’t mean the defeated jurisprudential methods have disappeared. Ketanji Brown Jackson is making a push to revive the congressional mind-reading of purposivism. Richard Posner spent decades pushing his pseudo-philosophical theory of pragmatism. The all-is-politics of Critical Legal Studies surely animates many or most of the 245 Biden judges. The so-called Common Good constitutionalists seek to revive a pastiche of continental European theories of law. Absent unforeseen changes in the composition of the Supreme Court, though, these are either doomed rearguard actions or niche insurgent campaigns. None of them present a real threat to the primacy of the text.
The soft underbelly of textualism, though, is its basis on the text itself. Legal text is text like any other and subject to the same varieties of interpretations as, say, a literary text. Amy Barrett explains this at some length in her book Listening to the Law, arguing that text must take its meaning from the circumstances of its drafting as much in the law as in any other written enterprise. This is a generally orthodox liberal view of text whose metes and bounds as applied to law range from Ronald Dworkin to the left and Randy Barnett to the right.
But in this year of Our Lord 2026 there are many other ways to approach a text, even a legal text. That’s where Lawrence VanDyke of the U.S. Court of Appeals for the Ninth Circuit comes in. Through a series of separate writings VanDyke has adopted a postmodern approach to the circuit-court opinion genre that ironically turns the text against itself. He has embraced the fact that an opinion as opinion can have meaning beyond the arguments it presents. His is an ironical approach to the practice of judging deployed in support of deeply sincere normative legal views. It’s an approach that can be disturbing to those with a traditional view of the judicial enterprise and that is truly unique in the federal judiciary.
This most recently caused an unusually large stir in legal circles when he penned a dissent from denial of en banc review in Olympus Spa v. Armstrong. The case involved the religious rights of traditional Korean spa owners to forbid biological men from patronizing their all-nude, all-female facility. Or as VanDyke put it, “this is a case about swinging dicks.”
A total of 27 active and senior judges joined a statement denouncing his indecorous language. Judges Owen and Forrest (on the center-left and center-right) said of it, “We are better than this.”
VanDyke’s point was that being confronted with the words “swinging dicks” is not nearly as offensive as the actual male genitals that the ladies of the Olympus Spa will need to confront, thanks to the Ninth Circuit. Yes he also went on to make sound constitutional arguments in his opinion but those are almost secondary. The real point of the opinion was not to make a legal argument but to use the opinion itself to lay bare the hypocrisy of his colleague’s legal enterprise. How can the opinion mandating violative nudity that they endorse be taken seriously when they have the “fastidious sensibilities of a Victorian nun”? Their reaction shows their unseriousness; they can’t possibly believe what they claim to believe because their posture is “vulgarity for thee but not for me.”
What sets the opinion apart is not that the logic of his arguments reduces the court’s majority to the absurd, but rather that the opinion itself does so. It’s possessed of a knowing and ironic detachment. The opinion isn’t about the Olympus Spa; it’s an opinion about the opinion about the Olympus spa. It’s a kind of caustic meta-analysis that is unique to VanDyke.
This is not the first time he has taken this approach. In McDougall v. County of Ventura, VanDyke concurred in his own opinion striking down COVID gun-shop closures. In it he observed that, having issued a pro-Second Amendment opinion, he knew it would be taken en banc, so he would save the eventual en banc court the trouble of writing an opinion and just write it himself. Van Dyke proceeded to lay out a perfectly passible anti-gun opinion overruling what he just wrote. He plays the opinion straight, so it doesn’t fight the joke, because—as with Olympus Spa—it’s not about the legal arguments but about the absurdity of their use. It was the existence of his draft future opinion, not its arguments, that exposed the court’s real power structure.
One of the smartest lawyers I know called me after reading his concurrence and called it brilliant. “It’s checkmate,” he explained. “How are they going to write the en banc opinion now? It’s going to look just like his and prove his point.”
A somewhat more conventional outing by VanDyke was his musing recently about “the Circuit of Wackadoo,” wherein he described the internal operating procedures of a lunatic court of appeals that incentivized open manipulation of the legal system by aliens in removal proceedings. Obviously he was describing those of his own court.
The case continued wherein a stay was denied and the newest judge on the Ninth Circuit, Eric Tung, denounced the approach of the court to these pro-petitioner internal operating procedures as those of “party functionaries of a politburo.” It was a solid, biting, and traditional dissent. VanDyke’s earlier dissent was different in kind, again using ironic distance to deconstruct the court’s preposterous power structure that—in this case—renders binding caselaw meaningless.
Or take his notorious “video dissent.” Again in a gun case, he argued that the majority got wrong basic facts about the whether magazines are “accessories” or “arms,” which he demonstrated in a video by disassembling and reassembling some of his firearms in chambers. It’s not every day you get a multi-genre pastiche in a judicial opinion. But as with VanDyke’s other interventions, it’s not about the specifics of a particular gun assembly; it’s the fact that he did it. The panel majority didn’t because they couldn’t. VanDyke’s point is that they’re opining on something they don’t understand and he’s making the point by showing he does understand. (Judge Marsha Berzon called it “wildly improper.”)
All of these separate writings are not about particular laws but about the law. It’s not about using the text of his opinions to argue doctrinal points but about using the opinions as text to critique — one is tempted to say problematize — the Ninth Circuit’s judicial enterprise.
This is a uniquely postmodern approach to judging. It reminds me of the University of Colorado legal philosopher Pierre Schlag, whose subversive scholarship has taken an ironic sledgehammer to the legal academy for decades. For example there’s his article in the Harvard Law Review, “Law and Phrenology,” which—like VanDyke’s draft en banc opinion — is played entirely straight as it savagely mocks legal theory: “Despite the obvious differences between the rhetorical, intellectual, and social organization of phrenology and American law, there are some striking similarities. We will attend to the similarities first, and then explore the differences.”
As I noted above, VanDyke’s approach here is different in kind from what might be called his “peer” conservative judges known for their own scorching-hot takes. They are pushing the boundaries of what the rules of opinion-writing will allow; VanDyke uses the concept of opinion-writing to push the boundaries of what judging will allow.
Certainly no one on the left is playing at VanDyke’s level. Indeed the stuffy self-importance of even the new crop of radical Biden judges makes them perfect marks for VanDyke’s enterprise. They’re Richard Nixon to his National Lampoon. At some point you expect his dissent to be a picture of a mutt with, “Van Dyke, J., dissenting. If you don’t join my opinion, I’ll kill this dog.” (It works because you know he has a gun.)
This points to some ways in which his postmodern enterprise is misunderstood. Adrian Vermeule criticized him arguing that his rhetoric isn’t persuasive. It seems pretty clear to me that his goal is not to persuade but to condemn. He’s not winning converts like St. Francis. He’s setting up a bonfire of Stephen Reinhardt’s vanities like Savonarola.
I suspect he also isn’t really writing for conservative legal Twitter as he’s sometimes accused. (Vermeule speculates that VanDyke’s esoteric purpose may be “auditioning.”) I’m sure VanDyke doesn’t mind what plaudits he gets there, but they’re not the point. You can get those same plaudits by being based and conventional. His deconstruction of the Ninth Circuit makes the most sense as an attack on the judges of the Ninth Circuit. It’s not hard to say, looking at the lineup against him in Olympus Spa, that a hit dog barks. The act of his opinion writing confronts them with their hypocrisy. He’d probably be the first to admit that exposing hypocrites isn’t a good way to make friends while also noting that their anger only serves to expose themselves.
What effect all this will have on the law is hard to say. VanDyke’s approach is relatively limited in its aims and therefore probably harmless, at least structurally. (It clearly isn’t an effective vote-counting strategy, but, again, it’s not clear that VanDyke is too concerned about that.) “Legitimacy” is an overused term with a slippery meaning. More often than not it’s a political cudgel to wield against the courts. But something like HLA Hart’s rules of recognition undergird the ability of the courts to maintain their authority, and there is danger in chipping away at that conceptual scaffolding.
Turning back to Schlag, once I was introduced to his writing by my jurisprudence professor in law school, I rarely took legal scholarship all that seriously again. That’s the potential danger in VanDyke’s approach. How will turning his opinions as opinions against the Ninth Circuit’s judicial enterprise affect the judicial enterprise as a whole? As one admirer wrote of Schlag, “Schlag’s attack on legal academics and the legal profession generally is a mere by-product of the main point: an attack on law as such,” going on to note, “It is not just legal academics who should stop doing what they do. He seemingly does not want us to practice law. Indeed, Schlag’s comments about practicing attorneys are almost as vociferous as his comments about academics.”
That’s why it’s probably good that VanDyke’s approach is unique. There would be danger in its replication but it’s a difficult approach to replicate. Again, very few judges are playing at VanDyke’s level. Especially fortunate is the fact that almost no liberals do. It’s safe to say, though, that VanDyke’s postmodern beatings will continue on the Ninth Circuit until morale improves.