A Ninth Circuit Court of Appeals dissent in a transgender accommodations case has sparked an unusual debate within the federal judiciary about language, decorum, and what kind of plain-speaking is appropriate in legal opinions.
Joshua Katz, senior fellow at the American Enterprise Institute, joined Dan Proft on Chicago’s Morning Answer to parse the controversy and argue that the reaction to the dissent has focused attention on the wrong form of judicial misconduct.
The case, Olympus Spa v. Armstrong, involves a 2020 complaint from a transgender woman in Washington State who alleged that a traditional Korean spa, which requires all patrons to be completely unclothed, refused entry because the complainant had not undergone gender reassignment surgery. The Ninth Circuit produced 105 pages of opinions across multiple judges. The dissent drawing attention came from Judge Lawrence Van Dyke, who opened his opinion with a sentence describing the case as being about male genitalia, though in considerably more colloquial terms. Twenty-seven of his colleagues subsequently issued a joint statement condemning his use of coarse, crude, and vitriolic language as unsuitable for judicial opinions. Van Dyke responded that if his colleagues were troubled by language, they might consider what it would be like for women and girls as young as thirteen to encounter the anatomical reality his words described in a women-only spa.
Katz said the controversy raises a genuine question but that the public and legal commentary have been focusing on the wrong problem. Van Dyke’s language was coarse and represented a coarsening of judicial discourse, he acknowledged, and Proft agreed that there is a standard of decorum that ought to attend the wearing of the robe. But Katz argued that the more substantive problem lies with the other judges in the case, all of whom retreated to the clinical term genitalia and nothing else. The strategic use of that single neutral term, he said, allowed those judges to avoid ever acknowledging the physiological distinction between male and female anatomy that is the entire point of the controversy. When your opinion refers only to genitalia, you implicitly suggest that all genitalia are functionally equivalent and interchangeable, which is precisely the ideological premise the case was testing, and you do so without ever being required to defend it. Katz said he is more troubled by that deliberate obfuscation than by Van Dyke’s vulgarity.
His preferred alternative, which he said could be stated plainly on radio, is simply accurate anatomical language. Calling things by their correct names is neither vulgar nor mealymouthed. It is precise. And precision in legal writing is both professionally appropriate and analytically clarifying in a way that either Van Dyke’s street-corner register or his colleagues’ clinical evasion fails to achieve.
Proft raised a broader point about the growing political character of the federal judiciary, noting that district court judges are increasingly issuing rulings they know will be overturned by appellate courts or the Supreme Court, apparently for the purpose of making a political statement or creating delay rather than faithfully applying the law. Katz agreed that this tendency is a serious problem for the long-term legitimacy of the courts and that it warrants more engagement from sitting judges willing to offer meta commentary on what is happening to the judiciary as an institution, even if doing so contributes to the already significant inflation in the length and footnote count of modern judicial opinions. He said he wishes such commentary were not necessary but that in the current environment it may be unavoidable before the courts can return to narrower, more discipline-focused opinions.
The conversation also touched on the growing practice of Supreme Court justices publishing books and entering public discourse well beyond the limits of their written opinions, with Katz noting that seven of the current nine justices have books out or in progress, with only Chief Justice Roberts and Justice Kagan as exceptions. He said the trend reflects the same institutional pressures driving Van Dyke’s dissent: judges are operating in a cultural and political environment that demands engagement, and they are responding to it whether or not doing so comports with traditional conceptions of judicial restraint.
Katz said Van Dyke has been described by National Review’s Mike Frioso as a postmodern jurist, someone who deliberately plays with and subverts the conventions of his profession in ways that are becoming characteristic of his work on the Ninth Circuit generally. Proft suggested the more powerful response to the majority’s reasoning might have been to expose the euphemism directly, using the dissent to offer a broader commentary on why deliberately vague language in cases like this is not neutral but is itself a substantive ideological choice, and what that reveals about the state of judicial reasoning on questions at the intersection of biology, identity, and law.