The 53-Year-Old Virgin

This judge may find out what it's like to be Steve Carell

In the 2005 movie “The 40-Year-Old Virgin,” Steve Carell and his friends are sitting around a poker table, talking about women in a Donald Trump sort of way. Carell, playing a virgin, is trying to describe what it’s like to touch a woman’s breast, and he comes up with this: “It feels like, a bag of sand.”

The scene is near perfect in its portrayal of a total doofus trying to act cool among a decidedly cooler crowd.

Which brings us to Judge Lawrence VanDyke.

On Thursday, the 53-year-old judge, who sits on the U.S. Court of Appeals based in San Francisco, wrote an opinion dissenting from the majority’s decision not to rehear a case en banc – meaning a rehearing by the full court. The case was about two Christian-owned spas in Washington state with a policy of allowing in only “biological women” and not men or, in the court’s words, “preoperative transgender women.”

The state forced the owners to ditch the biological-women requirement as a violation of a Washington law prohibiting sexual-orientation discrimination, and the spa owners sued, claiming a violation of their First Amendment rights of speech and religion. A trial judge dismissed the suit because the anti-discrimination statute was a neutral, generally applicable law – meaning it passed constitutional muster as applying to everyone, discriminating against no one. The owners lost on appeal and again on their request for a rehearing.

Not all the judges agreed on the denial of rehearing. There were three dissenting opinions, including VanDyke’s. Here’s how it began:

“This is a case about swinging dicks.”

I’m sorry, what?

VanDyke (yes, that’s his name) figured his language would ruffle feathers – and did it ever. Many of his colleagues lambasted his use “of vulgar barroom talk” and wrote that “it ignores ordinary principles of dignity.” One judge said simply, “We are better than this.”

VanDyke, though, seemed committed to the idea that “woke regulators and complicit judges” were doing serious harm to “real women and young girls,” so he doubled down: “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.”

Plenty of federal judges write “colorful” opinions, especially now, when blunt and forceful language from the bench feels truly necessary to emphasize how wrong and largely illegal so many of our president’s actions have been. Accusing the administration of being “pernicious” and “cringe-worthy” or engaging in “gamesmanship or grandstanding” or issuing “blatantly unconstitutional” orders packs a satisfying wallop. In any era, though, there’s good reason for judges to write clear and compelling and just flat-out entertaining opinions. They increase the likelihood that ordinary people will actually read and understand them – or at least that reporters will cover and explain them well.

There’s a contrary view, of course. Plenty of judges and academic types have said that anything informal or spicy risks damaging the dignity of judges and the authority of opinions and courts. Why do you think they wear black robes? In a 2021 article, University of Wisconsin Law School Professor Nina Varsava wrote, “a judge’s efforts to please, entertain and persuade can interfere with fundamental judicial duties, including those of impartiality and candor, and can compromise the legitimacy of the adjudicative process.”

That seems a stretch, but truth be told, even great judges sometimes go overboard. Last November, for example, conservative U.S. Court of Appeals Judge Jerry Smith dissented from his colleagues’ decision to put Texas’ rejiggered electoral map on hold, and he lost his temper, calling the author of the majority opinion “an unskilled magician” who prefers “living in a fantasyland.” Groaners can come from the left as well. U.S. District Judge Jed Rakoff is one of the judiciary’s best writers, but in 2014, after an appeals court forced him to approve a lawsuit settlement between the Securities and Exchange Commission and Citigroup, he wrote, “That Court has now fixed the menu, leaving this Court with nothing but sour grapes.”

Being appropriately clever on the bench is surely a skill, and Judge VanDyke’s biggest mistake was to be inept. Maybe he thought that his vulgarity would put him in good stead with the vulgarian-in-chief should an opening occur on the U.S. Supreme Court. Maybe, in his own way, he was trying to sound cool. Whatever the reason, all he ended up doing was to draw attention from his stated purpose.

And to give us all a good laugh.