Federal Judge Asks Supreme Court To Please Start Publicly Humiliating His Colleagues

Judge Lawrence VanDyke has a modest proposal. He says so twice, which is one more time than a person confident in the joke would need to.

The proposal, delivered last week in a dissent from the Ninth Circuit’s denial of rehearing en banc in Knife Rights, Inc. v. Bonta, is that the Supreme Court should start summarily reversing his own court’s Second Amendment decisions on sight. Not because a summary reversal is doctrinally warranted in any particular case, but because his colleagues would find it humiliating, and humiliation is the only currency VanDyke believes they still accept.

“To put it more colloquially, it’s time for some benchslaps,” he writes. “Nothing less will give this court any pause before ultimately blessing every arms restriction it reviews.”

Nothing less indeed.

Some context on the man making the ask. This is the judge who, back in March, opened a dissent in a trans discrimination case with the sentence “This is a case about swinging dicks,” then spent the rest of it calling his colleagues “woke judges” who were “complicit” in harming women and girls.

And those colleagues responded. Judge McKeown, writing for herself and 26 colleagues including the Chief Judge, filed a statement observing that the American legal system has long been a place to resolve disputes with some dignity and is “not a place for vulgar barroom talk,” and that language like his “makes us sound like juveniles, not judges.” Judge Owens and one other colleague filed twelve words of their own: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”

And if you’re wondering if that, ahem, benchslap landed, well, it was received, catalogued, and filed away for later use. VanDyke cites the McKeown statement twice in Knife Rights.

Here’s the second one, teeing up the benchslap pitch:

I’ve been accused of using “vulgar barroom talk” to get my point across, so let me assuage my colleagues’ selective Victorian predilections up front. Calm down. In making my recommendation today, I’ve chosen a word that, while evocative, would never be the punchline to a coarse joke at your local bar, and even has an official entry in the lawyer’s dictionary of choice.

VanDyke is the epitome of Walter Sobchak in the bowling alley, waving a firearm around and insisting he’s the calmer man in the room. Complete with a citation to Black’s Law Dictionary, offered as proof that this time he’s brought a nice clean word to the party.

The word benchslap, as longtime readers know, was coined by Above the Law’s founder, David Lat, in 2004 and got into Black’s (notably over objections that it was too vulgar for a dictionary). It is a perfectly appropriate term for a legal gossip blog, but that doesn’t mean it earns the greenlight for judicial opinions where decorum and professionalism are supposed to reign.

Here’s the thing: VanDyke’s childish rebuke is completely superfluous! Judge Tung already wrote a seventeen page dissent — joined by, inter alia, VanDyke. Agree with it or don’t; it’s an argument, pitched in the register arguments get pitched in, by a bench full of conservatives who managed to get through the exercise without a single hissy hit. The 27 pages VanDyke wrote add nothing to the legal argument — the separate writing exists only to hold the pen.

And that pen is particularly vicious. Ninth Circuit Second Amendment litigation is “a lot like watching a Harlem Globetrotters game.” The court is “like a clever, spoiled child.” A summary reversal is “the same monosyllabic correction that a frazzled parent gives her whining toddler,” which is “kind of embarrassing (to the toddler).” He drafts the Supreme Court’s imagined reply for it — “Your decision sucks…. And it sucks so badly, it isn’t even worth a closer look” — and suggests that forcing his colleagues to write a pro-gun opinion “will operate as a form of exposure therapy.” Anyone impressed by the court’s one post-Bruen ruling for the Second Amendment is, “to quote our Chief Justice, a chump.” The whole enterprise, he says at last, is a “cover-up,” and his colleague’s response to him is nothing but “manipulative calls for faux collegiality.”

All of which would be entertaining to read if the man writing it were, say, a columnist on Temu-Above the Law. He is instead a life-tenured federal appellate judge whom the ABA rated not qualified — “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” He turned up on the first shortlist for the next Supreme Court vacancy. Five months ago he was inventing a fictional jurisdiction called the “Circuit of Wackadoo” and scripting his colleagues as Oprah handing out stays of removal.

Which is what takes the fun out of it. The insults exist primarily to get the attention of the White House, should a SCOTUS spot open up. And if the country is ever cursed with a Justice VanDyke… well, we know exactly what he’ll be doing.

Read the full decision below.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1