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Judge Lawrence VanDyke issued a crass and indecent solo dissent on Thursday, castigating his colleagues for protecting the rights of transgender women. VanDyke—a Donald Trump appointee to the 9th U.S. Circuit Court of Appeals—attempted to shame his fellow judges with lewd descriptions of genitalia and ultrapartisan complaints about trans antidiscrimination laws, which he derided as “Frankenstein social experiments.” Although VanDyke regularly belittles his own federal appeals court with juvenile insults, this latest shock-jock routine crossed the line from attention-grabbing performance art into outright vulgarity, prompting an unprecedented rebuke from 29 of his own colleagues across the entire ideological spectrum. His trolling, however, may well draw the attention of President Trump, who was clearly the intended audience for this obscene Supreme Court audition.

On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed VanDyke’s appalling dissent, the extraordinary response from his life-tenured colleagues, and the implications of this sordid spectacle for judicial independence. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: Judge VanDyke has constructed a reputation for himself as the judiciary’s most decorum-shredding troll. There’s stiff competition for that position, to be sure, but he outdid himself with this dissent. He began it this way: “This is a case about swinging dicks.” And it only gets worse from there.

Mark Joseph Stern: I’m going to limit how much I quote VanDyke, because I hesitate to give him the attention he so obviously craves, but here is what he went on to write: “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.”

So what’s actually going on here? Olympus is a Korean spa in Washington state whose Christian owners say they only allow entry to “biological women,” which apparently excludes preoperative transgender women. Washington’s Human Rights Commission found that this policy violated state law because state law outlaws discrimination on the basis of gender identity and public accommodations. The spa argued that it had a religious right under the First Amendment to discriminate against transgender patrons. A panel for the 9th Circuit disagreed, holding that the statute “imposes only incidental burdens on religious expression” and is both neutral and generally applicable. The spa petitioned for rehearing en banc, which was denied by the appeals court. That’s what prompted VanDyke to write this grotesque dissent.

Let’s stipulate that nobody should be surprised by VanDyke’s conduct. In a judicial attention economy, we have a lot of judges who all want the president’s solo attention waving their hands and saying: No, I am the grossest one of all! Nobody should be surprised that when he was nominated in 2019, the American Bar Association rated VanDyke “Not Qualified” based on 60 interviews with lawyers and judges, who found him to be an “arrogant, lazy,” “ideologue” who “lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.” They also questioned, at the time, whether he “would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.” Confronted with this assessment, he cried during his confirmation hearing. 

But let’s see how he described Washington state’s unexceptional trans rights law: “Sometimes, it feels like the supposed adults in the room have collectively lost their minds. Woke regulators and complicit judges seem entirely willing, even eager, to ignore the consequences that their Frankenstein social experiments impose on real women and young girls.” I think the ABA is vindicated in its assessment, and deserves a little medal for prescience here.

The ABA deserves a medal, a trophy, a Chili’s gift card. Unfortunately, Republican senators did not heed its warning, which is what led to this stunning dissent. Speaking of his bias, VanDyke also wrote that Washington’s law “will be used by sexual deviants to prey on women in female-only spaces,” and that these “sick and twisted consequences” are a result of “woke judges’ willingness to sacrifice those rights on the altar of ‘social progress.’ ”

Dahlia Lithwick and Mark Joseph Stern

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I want to be clear that there is no evidence in the record that Washington’s transgender women will abuse the law in the way VanDyke warns. And the spa can exempt itself from this civil rights law if it operates as a private club or as part of a religious institution rather than as a for-profit business, which is what it currently is. The spa can also urge the Legislature to change the statute to give an exemption to businesses like theirs. I’ll note that when LGBTQ+ people have asked courts to protect their rights, conservative judges have long argued that they should really be working through the democratic process rather than asking unelected judges to do their bidding. And there is real irony in the fact that conservative judges are now telling a commercial establishment that it should be able to leapfrog over that democratic process to get permission from unelected judges to discriminate against transgender people.

Reasonable people can disagree about the precise scope of LGBTQ+ nondiscrimination laws. But this case is not a debate about the wisdom of Washington’s law. This is certainly not a case about whether men can go into a women’s spa and assault women—that is already prohibited under state law. This is about whether a federal court should step in and tell a state that its civil rights law goes too far, under the pretense of claiming there’s some kind of religious discrimination against a commercial establishment. The 9th Circuit correctly concluded that it should not.

One fascinating thing about VanDyke’s opinion is that it prompted a truly remarkable clapback among 29 of the 9th Circuit’s active and senior judges. Twenty-six judges joined an opinion by Judge Margaret McKeown in which she writes that VanDyke’s 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.” She added: “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.” 

Some very conservative judges signed onto that, including Jay Bybee, the George W. Bush appointee who gave his seat to VanDyke, and Eric Miller, a Trump appointee. Danielle Forrest, another Trump appointee, signed onto a separate opinion by Judge John Owens that states: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.” This entire revolt tells us that even some people who agree ideologically with VanDyke’s positions are tired of this flagrant Miss America–style campaigning for a Supreme Court seat that may or may not open up this summer. 

Does this rebuke only make VanDyke look better in the eyes of the only judge of this Miss America pageant, Donald J. Trump? And also, to Judge McKeown’s point: Won’t this one-way ratchet just completely collapse public confidence in the judiciary?

I do think this dissent could catch Trump’s attention—VanDyke is parroting the degrading language the president himself uses to vilify transgender people. He’s showing Trump that he is a mini-Trump on the bench, using language that’s almost out of the Access Hollywood tape to belittle his own colleagues. If Trump’s problem with his first three justices was that they weren’t loyal enough to him, VanDyke is saying: I’m not just going to be loyal to you on the bench. I will be you on the bench. I’m sure that’s an appealing pitch.

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This auditioning might pan out for individual judges, but it’s a profound problem for the judiciary. It only leads to more vulgarity and cruelty. And the revolt we saw among the 9th Circuit’s judges is vital. We need to see Republican appointees drawing the line and saying that this language is beyond the pale. I think they’re doing so not only because they’re personally disgusted, but because they agree with Judge McKeown that this behavior will eventually sap their authority as a court. If judges do not exercise the basic dignity of a judicial body, they will look like nothing more than partisan brawlers. Once that happens, it becomes difficult to defend their ability to exercise the powers of a court.

That’s where VanDyke and his competitors for a future Supreme Court seat are leading the entire judiciary. Either they don’t know or they don’t care, and they’re willing to sacrifice it all just to get Trump’s attention. But more conservatives on the bench need to say it’s unacceptable, because it will eventually undermine the entire project of judicial independence.

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