Putting The ‘Dick’ In Dicta
Judge Lawrence VanDyke’s ‘swinging dicks’ opinion, including the reaction to it, offers a window into the state of the judiciary—and our country—in 2026.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.
As a suburban dad of two, I don’t discuss dicks much these days. Consistent with guidance from pediatricians, we refer to body parts by their correct anatomical terms when talking to our boys.
So I didn’t expect to be taken back to dick talk—which I haven’t heard much of since my time as a fanboy of Samantha Jones from Sex and the City, or my salad days as a young(ish) gay man in Manhattan—by a Ninth Circuit opinion. But the legal world in 2026 is a surprising place.
As mentioned by seemingly everyone (including me), penises popped up last week in Olympus Spa v. Armstrong. Here’s what the case is about, as explained in Judge Margaret McKeown’s majority opinion for the three-judge panel:
This appeal stems from the application of the Washington Law Against Discrimination (“WLAD”) in connection with the entrance policy of two Korean spas (collectively “Olympus Spa” or “the Spa”). Washington’s Human Rights Commission (“HRC”) initiated an enforcement action against the Spa based on the Spa’s policy of granting entry to only “[b]iological women” and excluding, in addition to men, preoperative transgender women who have not yet received gender confirmation surgery affecting their genitalia. The HRC alleged that the entrance policy violated WLAD, a state public accommodations law that prohibits public facilities from discrimination on the basis of sexual orientation….
Although the enforcement action is grounded in state law, the Spa sued state officials (the Executive Director and Civil Rights Investigator for the HRC) on First Amendment grounds, claiming that WLAD, as enforced against the Spa’s entrance policy, violates its rights to the freedom of speech, religion, and association. Because the enforcement action did not violate the Spa’s First Amendment rights, we affirm the district court’s dismissal of the Spa’s complaint.
Judge Kenneth Lee dissented, but on statutory grounds. In his view, WLAD doesn’t cover transgender status.
Last Thursday, the Ninth Circuit voted against rehearing en banc in Olympus Spa. Three judges filed dissents from the denial of rehearing aka “dissentals.” But only one went viral—that of Judge Lawrence VanDyke aka “LVD,” who opened as follows:
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.
Not to be outdone, Judge Jim Ho, LVD’s fellow Trump appointee and rival SCOTUS shortlister, subsequently issued a Fifth Circuit opinion that opened as follows: “This is a case about huge, throbbing cocks.”
[UPDATE (2:00 p.m.): In response to a reader who emailed me to say they thought this was real for a split second, please note the discussion deeper into this post: “my joke above about Judge Ho was just that—a joke.” To be clear, Judge Ho has not—to my knowledge, as of now—referenced “huge, throbbing cocks” in any opinion.]
Not to be pedantic, but is it accurate to say this case is about “swinging dicks,” plural? To date, there’s only one transgender woman whom we know of, Haven Wilvich, who has expressed interest in going to Olympus Spa. In fact, as noted in LVD’s opinion, “Olympus Spa staff had no records or recollection of Wilvich ever having come into the spa,” and “Wilvich later told local reporters that he never actually visited the spa but had, in reality, merely called ahead of a friend’s visit.” So unless Wilvich has some highly unusual anatomy, there’s at most one “swinging dick” here (although I acknowledge the theoretical possibility that multiple transgender women who have not had gender-affirming bottom surgery might now flock to Olympus Spa).1
Offering a citation for the vulgarity might have made it less edgy. For instance, Judge VanDyke could have cited Liar’s Poker (1989), Michael Lewis’s account of his time as a bond salesman on Wall Street during the late 1980s, which popularized the term “Big Swinging Dick” (used to refer to a successful bond trader or salesman). But then again, edgy might have been LVD’s point.
Alas, no other judges joined Judge VanDyke’s dicks-ental (shocker). But twenty-seven judges2 joined Judge McKeown’s one-paragraph statement respecting the denial of rehearing en banc, which took Judge VanDyke to task for using the D-word:
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.” 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 dissent3 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.
Judge John Owens, joined by Judge Danielle Forrest, issued a shorter statement: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”
Interestingly enough, five of the judges who signed on to either the McKeown or Owens statements were Republican appointees: Judges Richard Clifton (Bush 2), Jay Bybee (Bush 2), Milan Smith (Bush 2), Eric Miller (Trump 1), and Danielle Forrest (Trump 1).4 But the rest were, as you might expect, Democratic appointees.
In response to his critics, here’s what Judge VanDyke had to say for himself (the footnotes appeared as footnotes in LVD’s opinion, although with different numbering):
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 liberties5 and exposing women and girls to male genitalia.6 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.
Two thoughts. First, you don’t need to be “a Victorian nun” to think it’s wildly inappropriate to mention “dicks” in a judicial opinion, with some exceptions—such as a sexual-harassment case where you have to describe the alleged harassment, in terms of the exact words that were said.7
Second, speaking of harassment, there’s an Easter egg for Ninth Circuit obsessives in here. After Judge Stephen Reinhardt, the court’s leading liberal, passed away, allegations that he sexually harassed and otherwise mistreated his clerks came to light. So in the context of the current controversy, revolving around a sexually charged vulgarity, VanDyke invoking the “dearly departed” Reinhardt wasn’t just about the Reinhardt-authored opinions referenced in the footnotes. It was the right-leaning LVD telling his left-leaning colleagues, “It’s a bit rich for you to be clutching your pearls over my having used the D-word in an opinion, considering that someone on your team—your former captain, actually—sexually harassed his clerks.”
(By the way, what’s it like to clerk for Judge VanDyke? If you have information, please drop me a line.)
Back to the LVD dissent (again, the footnotes are his):
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?”8
Sometimes coarse and ugly words bear the truth.9 I coarsely but respectfully dissent from our court’s willingness to leave this travesty in place.
“I coarsely but respectfully dissent”—that’s a new one. But how “respectfully” he dissented is definitely open to question.
Going to the merits of Judge VanDyke’s dissent, I understand what he was trying to do here. He wanted his style to mirror his substantive argument: if you find his language shocking and inappropriate, that’s because the majority opinion countenances something shocking and inappropriate: the entry of penis-packing persons into a women-only, nude spa.
Whether you’re an LVD critic or fan—and his outré dissent did have its fans, from gazillionaire Elon Musk to U.S. Attorney Sigal Chattah (D. Nev.)—you can’t say he’s stupid. He’s a Harvard Law School graduate, former D.C. Circuit clerk, former Gibson Dunn associate, and former solicitor general of two states (Montana and Nevada). When the American Bar Association gave him a “Not Qualified” rating when he was nominated to the Ninth Circuit, it was based on concerns not related to his intellect—such as allegations that he’s “arrogant, lazy, [and] an ideologue.” In fact, William Hubbard’s letter to the Senate Judiciary Committee, summarizing the ABA’s (negative) findings, described VanDyke as “clearly smart.” So I get where he was coming from, and I wouldn’t blame his problematic dissent on stupidity.
But there’s a difference between intelligence and wisdom—and, at least in my opinion, the LVD dissent was not only inappropriate, but unwise. And I’m far from alone in holding that view. Professor Adrian Vermeule of Harvard Law School is a pretty hard-core conservative—and he was unfazed by Judge VanDyke’s coarse language, noting that “[s]ometimes the demand for ‘civility’ is just an attempt to make certain subjects undiscussable that very much ought to be discussed.” But even Vermeule found the VanDyke dissent unproductive (via his HLS colleague, Professor Jack Goldsmith):
The better objection [than his language being “uncivil”] is that Judge VanDyke’s rhetoric is clumsy, even self-defeating. Rather than causing the audience to empathize with the party opposed to transgender access requirements—the Judge’s stated goal—the controversy this language provoked itself became the topic.
As did a number of other commentators—such as Dahlia Lithwick and Mark Joseph Stern, in a piece for Slate titled, “We Have a Winner for Most Grotesque Supreme Court Audition Yet”—Vermeule raised the possibility that VanDyke might be “auditioning” for SCOTUS. But even assuming that was his goal, LVD’s effort was ham-handed, according to Vermeule:
The skillful auditioner for the Court must send the right signals on two margins, not just one—[he] must show not merely that he is ideologically aligned with the appointing President, but also that he is more persuasive, intelligent, and [more] compelling than the competing candidates. The resort to vulgarity may help on the first margin, but hurt on the second, for it always raises a suspicion that the rhetor cannot think of any more subtle and clever way to make his point. Vulgarity is the recourse of dull minds. Whatever the Judge’s motivations may have been, his opinion is worse than an incivility; it is a blunder.
And this is why my joke above about Judge Ho was just that—a joke. I can’t imagine any of my four top SCOTUS contenders in the current administration—Judges Patrick Bumatay, James Ho, Andrew Oldham, or Amul Thapar—writing a “swinging dicks” opinion. They’re too savvy for that.10
Agreeing with Vermeule, I think it’s fair to say that the LVD dissent isn’t helpful in advancing his Supreme Court prospects, and it isn’t helpful in persuading moderates. I also agree with Professor Dan Epps that it reduces the chances that the Supreme Court will grant certiorari in Olympus Spa; as Epps put it, “This is now the case about VanDyke’s dissent. The justices will recognize that some will see granting cert as an endorsement of his rhetoric.”
But as Michael Fragoso wrote in a fascinating National Review piece, The Postmodern Jurisprudence of Lawrence VanDyke, LVD might have a different project:
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.
After running through LVD’s “greatest hits”—such as his (in)famous YouTube “video dissent” in a gun case, his mock en banc opinion, and his recent musings on “the Wonderful Circuit of Wackadoo”—Fragoso looks at the bigger picture:
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….
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 [into weapons] against the Ninth Circuit’s judicial enterprise affect the judicial enterprise as a whole?
In closing, I’d like to share with you some provocative thoughts from a reader, “Mr. Angry Moderate,” about what Dick-gate says about America in 2026:
We suck. And our reaction to the LVD dissent shows why we suck.
We give our attention to stunts like this—and attention is exactly what people like LVD want. It only encourages more of them in the future.
When a child acts out or has a tantrum, how should parents react? Perhaps counterintuitively, the best response is to ignore them. As child psychologists and behavioral pediatricians explain, “Attention from parents is very rewarding for children…. [And] negative attention from you is still attention. Ignoring works because it takes away attention from the behaviors you want to decrease.”
But instead of ignoring such rants, we feed them, with massive amounts of attention. And then we act all shocked when Donald Trump, the master of misbehaving to get attention, gets elected and reelected—fueled by billions of dollars in free media coverage.
Our nation is doomed. And we deserve it.
Tell us how you really feel, Mr. Angry Moderate! But seriously speaking, and informed by my experiences as a parent, I see his point.11
There is, however, a possible collective-action problem here. The nation might be better served if we all ignored such acting out. But many individuals feel—and understandably so—that for the sake of their individual integrity, they must speak out against such outrageousness.
In fact, there’s even an argument that a failure to condemn such breaches of shared norms is to be complicit in them—and encourages more transgressions. For a good articulation of this view, see Joe Patrice’s post at Above the Law, criticizing the 22 judges of the Ninth Circuit who stayed on the sidelines during Dick-gate, joining neither the McKeown nor Owens rebukes of LVD.
At the end of the day, this is a debate not about the end goal, but the best way to get there. On the end goal, I think—or at least hope—that many of us would agree with David French’s recent column in The New York Times (gift link), in which he decries the polarization and incivility of our current national discourse.
But what’s the best way to get to a better place? Reasonable minds can disagree over whether we need to do a better job of (1) ignoring the outrages of the other side, or (2) taking a stronger stance against them. This is an empirical debate—and, unfortunately, it’s hard to figure out what the world might be like if we did more of the former and less of the latter.
Readers, how do you feel? Please take my poll. Note the wording of the question, which asks whether Judge VanDyke’s invocation of swinging dicks was “justified.” I considered using “appropriate,” but decided to go with “justified” because it might produce less of a lopsided vote: LVD defenders might argue that while his language might have been inappropriate, it was justified under the circumstances.
Here’s another technical objection to the LVD dissent, from the Legal Style Blog: “The real issue here is one of civil procedure. Judge Van Dyke violated the party presentation principle. Where in the record did it say that the phalluses in question were sufficiently endowed to be swinging? The issue must be remanded to the District Court.”
Josh Blackman wrote that 28 out of the Ninth Circuit’s 51 total members, counting both active and senior judges, joined the McKeown statement. But I’ve counted the names multiple times now, and I’m pretty sure it’s just 27 (not counting the two judges who called out LVD in a different, shorter statement). Bloomberg Law and Reuters also reported that the number was 27 (or 26 plus McKeown).
It’s not clear why the majority referred to Judge VanDyke’s dissent as the “lead dissent” (other than to highlight it). Judge Eric Tung’s had more “joins,” i.e., judges who signed on to it, and Judge Daniel Collins was the most senior of the dissenters (even though his dissent was placed at the end of all the opinions).
Judges Miller and Forrest are widely regarded as the two least conservative Trump appointees, but reasonable minds can differ as to which of the two is most liberal. Interestingly enough, they both clerked for staunchly conservative jurists: Judge Miller clerked for the late Judge Laurence Silberman and then Justice Clarence Thomas, while Judge Forrest clerked for my former boss, Judge Diarmuid F. O’Scannlain.
See, e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006), cert. granted, judgment vacated sub nom. Harper ex rel. Harper v. Poway Unified Sch. Dist., 549 U.S. 1262 (2007).
See, e.g., Nunez v. Holder, 594 F.3d 1124, 1132, 1137–38 (9th Cir. 2010) (opining that our court had “moved away from … austere moral values” before characterizing as “relatively harmless” (1) a man who, “in a fit of ‘road rage,’ exposed his penis and yelled” a vulgar remark at a female driver and (2) a boy who intentionally exposed himself to his “two female classmates”).
Or to use an excellent example given by Professor Michael Dorf in Justia, the Supreme Court’s decision in Cohen v. California (1971), concerning a young man who sought to wear a “F**k the Draft” jacket—and whose counsel, Professor Melville Nimmer, dropped the F-bomb when arguing before SCOTUS.
William Shakespeare, Merchant of Venice act 3, sc. 2, ll. 75–77.
See, e.g., Matthew 3:7, 12:34.
In fairness to VanDyke, these judges’ chances of getting elevated are much stronger. As a dark-horse candidate, maybe LVD believes that his best shot is to be as over-the-top as possible—to “out-Ho Ho,” if you will. But I still believe, even taking this into account, that the dissental hurt VanDyke’s SCOTUS prospects more than it helped them.
As a member of the media, I give myself a pass: it’s my job to delve into this crap and put it under a microscope. Which is why I’ve devoted 3,500 words to Dick-gate.
Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts of podcast interviews; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.
Frankly, his language did not bother me. The decision was appalling, but that has been true of so many decisions in recent months that some more vivid demonstration seems perfectly acceptable. LVD seems clearly correct that this is a decision that rests more on politics than legal analysis, but that has also become so common that just saying it is not likely to have any impact. So despite my respect for some of those who joined the McKeown rebuttal, and accepting that the Tung dissent is more along standard lines but equally persuasive, I’m just fine with making it very clear what’s at stake here.
After reading Judge McKEOWN's comments on Judge Van Dyke's dissent from the denial of rehearing en banc, I expected to read something truly outrageous when I finally got to his dissent. Maybe because I've gotten too cynical and jaudiced in my old age, I was disappointed. Judge Van Dkye's style is to mock when he sees an outrageous result in his Circuit. See also Rojas-Espinoza v. Bondi, --- F.4th ----, 2026 WL 700882 (9th Cir. 2026) (Van Dkye, J., dissenting from the grant of rehearing en banc) ("Imagine, if you are able, the wonderful Circuit of Wackadoo. The attorneys are all wise, the judges are all zealous, and the law clerks are all above average.").
I find his style refreshing. Mockery can be very effective, particularly where the decision seems result-driven (hardly uncommon in the 9th Circuit). And as a father of daughters, I tend to agree with him that the result reached in Olympus Spa is, itself, over the top (whether it is "woke" or not is neither here nor there). The decision will probably put Olympus Spa out of business for obvious reasons. Whether Judge Van Dyke's use of this sort of language helps or hurts his chances to get a SCT nod is academic since it does not appear that a SCT slot will be available any time soon.