The Volokh Conspiracy

I think most people have missed the point of Judge VanDyke's "swinging dicks" dissental. Of course he used vulgar and coarse language. (I for one would not use this approach in my writing.) That was VanDyke's point. He was trying to draw a double standard. Thirty members of his court expressed their outrage at VanDyke writing about "swinging dicks," but not one of them was willing to review a case that involved actual "swinging dicks." How can it be that describing "swinging dicks" in a women's spa is a bigger problem than the state permitting actual "swinging dicks" in a women's spa? Judge VanDyke proves the old saw is true: "The pen is mightier than the sword." Or, as Sean Connery would say on SNL Celebrity Jeopardy!, "The penis mightier."

This is a common feature of contemporary debate: it is worse to use problematic language to describe something that to acknowledge how that thing is actually problematic.

First, the most salient example concerns abortion. For years, people were appalled when pro life advocates would display gruesome photographs and videos of abortions being performed. To this day, there is outrage at the detailed statement of facts in Gonzales v. Carhart about how partial birth abortions function. Justice Kennedy's majority opinion felt compelled to explain why he was using such graphic language: " The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail." Here is an excerpt:

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. The steps taken to cause dilation differ by physician and gestational age of the fetus. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less.

After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.

Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit.

The real problem was that those abortions were actually being performed, not that judges accurately described them.

Can you imagine if Judge VanDyke included in his opinion a photograph from the record of a "swinging dick" in a women's spa? There would be outrage that VanDyke included the graphic photo, but silence about the fact that the photo exists. (I doubt any such photo exists in the record, but in a normal case, discovery would generally require showing what it is the plaintiff seeks to do, even in a redacted form.) How many members of the Ninth Circuit would take their young daughter to the Olympus Spa?

Second, there is almost a visceral reaction to "misgendering" a transgender person--even by describing the person's anatomy. There is even greater opposition to describing what happens at "Drag Races" and other "Drag Queen" story times where children are present. But descriptions of these actions are an effective way to demonstrate why governments seek to regulate them. Consider these findings of fact from Spectrum WT v. Wendler, a case from NDTX about a drag event at a public university where children could attend. Judge Matt Kacsmaryk spares no details:

The 2023 on-campus show "was to be emceed" by a man named Michael Arredondo, whose drag performer name is "Myss Myka." Spectrum WT v. Wendler, 151 F.4th 714, 719 (5th Cir. 2025) (citation modified), reh'g en banc granted, opinion vacated, 157 F.4th 678 (5th Cir. 2025). Michael "had performed in a highly sexual drag show" in February 2023, about a month before Spectrum's show would have taken place in Legacy Hall. Id. He also performed in the off-campus March 2023 show—and would have performed in Legacy Hall, had the show taken place there. Myss Myka's performances routinely veer into salacious, sexualized conduct. For instance, in a five-minute span during a February 2023 performance, he made the sign of the cross before gradually stripping off his angel costume, twerking, and graphically simulating male masturbation onto an audience member. He also squeezed his prosthetic breasts together suggestively and placed a spectator's hand on them. He ended his routine by grinding his near-bare crotch on another audience member, an act sometimes described as "frottage." Spectrum "d[id] not dispute" that Michael engaged in this behavior during its appeal of this Court's denial of a preliminary injunction. Spectrum WT, 151 F.4th at 719 n.2.

Spectrum expressly invited Myss Myka to host its 2023 and 2024 drag shows. Children—of any age—would have been present at these shows. Spectrum's only requirement was that minor children be accompanied by a parent or guardian. But Spectrum had no way to ascertain whether a child was accompanied by a parent or guardian, as opposed to any other adult. Nor could Spectrum have known whether participating PUP students were minors: PUP participants receive the same student ID as full-time West Texas A&M students, and those IDs do not list students' ages. Even professors do not know which of their students are PUP students.

Don't skim it. Read it. Elites will be appalled these words appear in a judicial decision, but not that this behavior actually exists in the presence of children. How many members of the Ninth Circuit would take their young children to this drag show?

The court also included photos. I include them after the jump, because they are not safe for work, but apparently were safe for children:

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The Ninth Circuit denied rehearing en banc Olympus Spa v. Armstrong. Judge VanDyke wrote the lead dissent, which begins this way:

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. 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.

As you could imagine, this line infuriated Judge VanDyke's colleagues.

Judge McKeown issued a statement that was joined by twenty-eight members of her Court (the Ninth Circuit has fifty-one total active and senior status judges):

McKEOWN, Senior Circuit Judge, joined by MURGUIA, Chief Judge, HAWKINS, S.R. THOMAS, GRABER, FLETCHER, PAEZ, BERZON, CLIFTON, BYBEE, and HURWITZ, Senior Circuit Judges, WARDLAW, GOULD, RAWLINSON, M. SMITH, CHRISTEN, NGUYEN, FRIEDLAND, MILLER, KOH, SUNG, SANCHEZ, H.A. THOMAS, MENDOZA, DESAI, JOHNSTONE, and DE ALBA, Circuit Judges, respecting the denial of rehearing en banc:

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."1 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.

Judges Owens and Forrest (a Trump appointee) issued a one sentence statement:

Regarding the dissenting opinion of Judge VanDyke: We are better than this.

Judge VanDyke responds to McKeown's statement:

Finally, I'll respond briefly to my colleagues' discomfort with how I've written this dissent. My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia. That kind of selective outrage speaks for itself.

The public deserves a court that is actually trustworthy. We should be earning that trust, not demanding it like petty tyrants. 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.

Sometimes "dignified and civil" words are employed to mask a legal abomination. Or, to put it in vernacular perhaps more palatable to my colleagues' Victorian sensibilities: "In law, what plea so tainted and corrupt, / But, being seasoned with a gracious voice, / Obscures the show of evil?"

Sometimes coarse and ugly words bear the truth. I coarsely but respectfully dissent from our court's willingness to leave this travesty in place.

Some people suggest that Judge VanDyke is "auditioning" for the Supreme Court. Before this opinion, I could have told you that he most certainly is not. Watch my interview with Judge VanDyke. After this opinion, you should have no doubts. He truly believes what he is writing, and uses his pen to advance his understanding of the law.

Judge Tung also issued a dissent, which was joined by Judges Nelson, Bumatay, and VanDyke.

Let us be clear about what the law in Washington requires. Under its law, the State can disregard a small-business owner's Christian beliefs and force her familyrun Korean spa to allow a nude man (who claims to be a woman) into an intimate space reserved for its female patrons. Yet under that same law, private clubs embracing secular values can refuse entry to that man. Schools and cemeteries can refuse service to that man, too, so long as they are run by institutions deemed "sectarian." Thus, while the law purports to protect any Washington resident from so-called gender-identity "discrimination," the State's prohibition exempts some secular organizations and certain religious ones—it just does not exempt the small business in its exercise of its religious beliefs here. How is this at all a "neutral law of general applicability"? Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990). It is not. The panel's conclusion to the contrary—immunizing the law from any serious First Amendment scrutiny—should have been vacated. I dissent.

This case will be swinging to a cert petition near you.

Last week, the Supreme Court used its emergency docket to review to cases from two lower courts' emergency docket. The postures were different but the upshot was clear: the United States Supreme Court thought that the New York Court of Appeals and the Ninth Circuit did not properly exercise its discretion with emergency appeals. As I wrote, "inferior courts on both coasts used their emergency dockets, and the Supreme Court reversed both rulings."

Despite all of the criticism of the Supreme Court's emergency docket, we should not forget that lower courts use their emergency docket all the time. Why should lower courts be free to rule on their emergency docket but not the Supreme Court? Indeed, the failure of lower courts to grant emergency stays necessarily leads to emergency Supreme Court appeals.

The latest episode from the Ninth Circuit illustrates this precedent. The Ninth Circuit, as matter of practice, will grant an administrative stay to block the removal of every alien. The merits are irrelevant. The de facto rule is that removals cannot proceed. And, as with any administrative stay, there is no explanation or reasoning. The Ninth Circuit issues these orders from the shadow docket. These stays, no matter how frivolous, can last for months or years. This practice dwarfs any concerns that Justice Barrett had with administrative stays from the Fifth Circuit.

Judge VanDyke described this practice in a dissental in Rojas-Espinoza v. Bondi. He compared the Ninth Circuit to the "wonderful Circuit of Wackadoo" where all the motions for administrative stays in immigration cases are granted:

So the judges of Wackadoo adopted a convenient, but unwritten, practice. Whenever a party made a request for any form of preliminary relief, the Circuit would automatically grant the requested relief as an "administrative stay" pending review. Then the Circuit would file away the technically unresolved motion for months or years, until some of its judges got around to reviewing the merits of the case. Then at that time, the judges could conveniently dust off the motion for preliminary relief to resolve it simultaneously with the merits decision.

But this plan didn't work out as the cases piled up:

In short order, the Circuit of Wackadoo's docket became more crowded than ever with thousands of utterly meritless motions for stays and injunctions. For the hardworking judges of Wackadoo, this only reinforced their steadfast belief that the automatic-grant and deferred-review process was now more essential to the orderly and efficient management of their docket than ever before.

As Chilli Heeler would say, Wackadoo!

Yesterday, the newest member of the Ninth Circuit, Judge Eric Tung, opined on the issue in another opinion from the same case. Tung explained that the motion for a stay in this case was "patently frivolous" and cited a statute authorizing stays that had been repealed. Tung further wrote that the practice of automatic stays is inconsistent with Nken v. Holder. (A similar issue arose with the District of Maryland's rule to automatically grant habeas in removal cases.) This policy, Tung writes, lacks any legal justification:

Nevertheless, our court has disregarded (and continues to disregard) these instructions in its implementation of an automatic-stay policy. In this court, prolonged stays of removal are issued virtually as a matter of right; the court reflexively grants stays pending the appeals process; it places the burden not on the applicant to show why a stay is warranted, but on the government to oppose the stay and to seek a more expedient resolution; and it does not assess any of the traditional stay factors, including the merits or the public interest, before granting the automatic stay. Our practice, simply put, lacks any legal justification.

And the Ninth Circuit took this action on its shadow docket:

This court has now vacated the panel's decision. The en banc panel appears to have validated the three-judge panel's reasoning by swiftly issuing a terse order denying the petitioners' motion to stay removal. But the en banc panel says absolutely nothing about whether the court's practice of granting prolonged automatic stays is lawful. The three-judge panel carefully explained that this court's practice defies Supreme Court precedent. Yet not a single member of this en banc panel has tried in its order to rebut that conclusion. Meanwhile, the majority has successfully erased it as precedent. Under cover of darkness, the en banc court buried the body, and there is not much hope of a resurrection. . . .

But reasoned disagreement, explained in our decisions, is a hallmark of our system. We are not party functionaries of a politburo in which raw political power is asserted in backrooms and without reason. We are members of a court. We exercise judgment, not will, and we are bound by law. "[R]eason," as Lord Coke reminds us, "is the soul of law." Milborn's Case, 7 Co. Rep. 6b, 7a (1587). In acting without reason here, we risk losing our character as a court.

Sounds like a shadow docket to me.

If lower courts can use the emergency docket to issue unexplained rulings while wiping out panel rulings, then certainly the Supreme Court should be able to do the same for panel rulings. Indeed, I think the need for a Supreme Court shadow docket is far greater than the need for a lower court shadow docket. In many ways, this inferior court shadow docket operates as a judicial version of the deep state: a permanent bureaucracy that experts insist must be deferred to. The Supreme Court wrestles mightily with trying to get these lower courts to fall into compliance. Some lower court judges have been reversed twice by SCOTUS in the same case. But as Judge Reinhardt would say, SCOTUS can't catch them all. Dare I say there is a "judicial resistance"? Stay tuned for a future essay on that topic.