Fauxpinion: The Judiciary is Disturbed and Disconnected in the New Media Age

Judicial Opinion Barbs Reflect Political Divisions, Twitter Era

Some circuit judges calling out colleagues in writings, gaining attention over tone
Ninth Circuit’s VanDyke recently included sarcastic aside to liberal colleagues

FEB 1, 2022 | REPUBLISHED BY LIT: FEB 5, 2022

Alternative Draft

The concurrence was tacked on to his majority opinion for a three-judge panel that Ventura County, California’s Covid-19 orders mandating a closure of gun shops, ammunition shops, and firing ranges violated the Second Amendment.

The alternative opinion for the court’s liberal majority included in the concurrence was an attempt to highlight how easy it would be for a larger en banc panel reviewing his decision to rely on the circuit’s “exceptionally malleable” framework for Second Amendment and reverse him.

“I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court,” VanDyke said. He also included footnotes he described as “thought bubbles” that chronicled the fictional panel’s justification for the opinion.

VanDyke’s concurrence “reminds us that we have some informal norms that judges generally follow when they write their opinions, and for that reason, we don’t usually see opinions that go quite this far,” Nina Varsava, a law professor at the University of Wisconsin-Madison who studies judicial decision-making.

The sample opinion has also won praise. Josh Blackman, a law professor at South Texas College of Law, called VanDyke’s draft opinion a “masterpiece” and “pitch perfect” in a post for The Volokh Conspiracy, a legal blog with conservative and libertarian analysis.

Arthur Hellman, a law professor at the University of Pittsburgh and court scholar, said VanDyke has a reasonable point about the malleable framework, but it might not be taken seriously given his reputation for criticizing colleagues.

“When people read this one, that earlier opinion colors the reaction, which suggests to me that judges should be very, very careful in launching these rhetorical grenades,” Hellman said.

In a November Second Amendment case, VanDyke accused colleagues of letting personal views on gun rights influence decision-making. In August habeas case, he compared colleagues to “a sullen kid who spits in the cookie jar after being caught red-handed.”

Before joining the bench, VanDyke was rated “Not Qualified” by the American Bar Association for a lack of judicial temperament. Former colleagues said he was “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” the ABA said in a letter to the Senate Judiciary Committee.

Supporters disputed that description, saying the former solicitor general of two states and Trump Justice Department official was suitable for the bench.

Social-Media Conscious

VanDyke isn’t the only judge calling out colleagues or making comments in opinions that draw notice for their tone or language.

Fifth Circuit Judge James Ho, who is familiar to social media audiences, has suggested his colleagues are applying “a woke Constitution” and dismissed dissenters claims that they have “deep respect” for the majority by invoking a line from the Will Ferrell comedy “Talladega Nights: The Ballad of Ricky Bobby.”

And Judge Kevin Newsom of the Eleventh Circuit suggested in a December 2020 opinion that a dissent was “shade-throwing” and said he feared it would “corrode the collegiality that has historically characterized this great Court.”

A dust up in the Fourth Circuit over a decision to hear a case before a larger en banc panel, prompted Judge James Wynn to call his colleagues dissents in denial of a rehearing “no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision.”

In some cases, the performance appears to be for a more political, ideological audience beyond the expected group reading judicial opinions.

“Some of these younger judges, especially newer judges, are very conscious of social media,”

Guberman said.

“And they’re very aware of that, nowadays, much more than in the past, all sorts of people, including non lawyers, share judicial opinions on Twitter, and Facebook, and the like.”

Scalia’s Shadow

Knowingly or unknowingly, some of the newer judges may be trying to imitate the late Justice Antonin Scalia, who was known for his sharp pen and witticisms, Guberman also noted.

But not everyone has the “other qualities that Justice Scalia had in his writing style, so they don’t really come across as smoothly or sincerely,” Guberman said.

The same sniping takes place on the Supreme Court. Richard Re, a professor at the University of Virginia School of Law, said Justice Elena Kagan, for instance, sometimes appears to have taken a page out of Scalia’s book.

All kinds of judges are taking an edgier tone because it attracts media attention, Re said.

Ultimately, writing directed toward colleagues may come at a cost on a court filled with judges who serve lifetime appointments.

“It really undermines the relationships on the court,”

said Nancy Gertner, a retired federal judge in the District of Massachusetts and current professor at Harvard Law.

“And you may not care about the relationships, but these are people who have to live together for some time.”