Judge VanDyke's "Alternative Draft Opinion"

Today's National Law Journal features an article here (access via Lexis; sorry) about an "alternative opinion" written by Judge Lawrence VanDyke of the U.S. Court of Appeals for the Ninth Circuit in McDougall v. County of Ventura. A 3-judge panel, including Judge VanDyke, reversed the district court’s order dismissal of a challenge to the county's 48-day COVID-related closure of gun shops, ammunition shops and firing ranges. Curiously, Judge VanDyke wrote a concurrence to his own opinion, reaching the same results but for different reasons.  Why did he do this? Judge VanDyke writes:

I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it. But I write separately to make two additional points. The first is simply to predict what happens next. I’m not a prophet, but since this panel just enforced the Second Amendment, and this is the Ninth Circuit, this ruling will almost certainly face an en banc challenge. This prediction follows from the fact that this is always what happens when a three-judge panel upholds the Second Amendment in this circuit.

I'm a big fan of "showing not telling" how the legal outcomes or reasoning of cases [or both] could have been different [or the same], using the same law and facts in effect at the time of the original opinion.  After all, that's the whole point of the Feminist Judgments projects at various stages in Canada, England & Wales, Australia, the U.S. (a series of books!), Ireland, Scotland, New Zealand, India, Pakistan and Mexico. There's also a pan-African Feminist Judgments Project and an International Law Feminist Judgments project, with other multi-national projects in the works. 

I don't think Judge VanDyke likely has on his bookshelf a copy of Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge 2016), edited by Kathy Stanchi, Linda Berger and me.  All the same, Judge VanDyke's stated reasons for writing an "alternative opinion" resonate:

A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must write a new opinion. Since our court’s Second Amendment intermediate scrutiny standard can reach any result one desires, 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. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone. To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”).

Judge VanDyke's ending his concurring opinion with “You’re welcome” might have been gratuitous, but I'm fascinated by this development. This is the first real-time "rewritten opinion" by a sitting judge that I have come across. Is anyone aware of other instances of judges writing and publishing "alternate opinions"?

Constructive comments only.

Comments

[anon]

I'm not sure you've expressly addressed the second claimed reason for the additional opinion: "Second, Judge VanDyke stated that this Circuit’s Second Amendment framework is exceptionally malleable and essentially equates to a rational basis review."

Writing for the majority, Judge VD concluded that the subject restrictions "fail[ed] to satisfy strict scrutiny’s high standard." He went on to hold that "But even if intermediate scrutiny applied, Appellees have failed to satisfy their burden of showing a reasonable fit."

That resolved the matter, essentially. But, VD went on to address the appropriate standard.

In a separate opinion, he argued that the "intermediate scrutiny [test], [wherein] we require “(1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” really amounts to a "rational basis" test. ("Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns."

In the SCOTUS, this sort of exercise is usually handled by breaking up the opinion into sections, allowing other Justices to join a certain sections and not in others. e.g. Discussion, Sections 2c and 2e. This is very common. See, e.g. the ACA opinion. Perhaps VD believed that the better course would be to all agree on the result under tiered scrutiny and then write separately about the appropriate standard and how intermediate scrutiny could have functioned. The fact of agreement perhaps made the "alternative" opinion necessary, to supply the missing dissent.

In any event, likening this bifurcated part of the opinion (along with a "draft" for the en banc panel), which amounts to an explanation of the reasons that the judge predicts en banc review and how he sees an issue concerning the standard of review, to "the whole point of the Feminist Judgments projects at various stages" seems a stretch. The Judge was addressing an issue of law determining the standard of review, not a political effort to address gender identity in the courts where the courts did not do this in the way believed appropriate.

Political activists' project to turn the law in the way described above doesn't seem even remotely comparable to the effort by VD.

In fact, following VD's reasoning, he would deplore a loose standard that permits the court to go any way it chooses without principled review, especially in cases involving rights that merit heightened scrutiny. Gender would surely qualify. He is demonstrating that a standard that permits "alternative judgments" is wrong. He didn't write to demonstrate that the majority opinion was wrongly decided.

[anon2]

just curious about whether people thought it was sarcastic and if sarcasm should be considered inappropriate for a judge. serious question.

[Bridget Crawford]

anon1, my post had nothing to do with the *substance* of Judge VanDyke's opinion or the Feminist Judgments projects, for that matter. My point is about the similarity of *methods*--namely, showing that judges using different reasoning can reach the same results (which some of the feminist judgments do; others reach different conclusions, with or without reasoning that departs from the original). In the case of Judge VanDyke,there's no dispute from me that he was concurring, not dissenting. He was showing his colleagues how to reach the *same* conclusion as the opinion of the three-judge panel (that he also wrote). I think it is quite a brilliant persuasive strategy.

And as for your characterization that the Feminist Judgments projects represent political activism but Judge VanDyke's opinion does not, I think that except at the margins, what is "political" is in the eye of the reader. Judges bring prior commitments and lived experience to the decisionmaking process. That's the point of the "alternative opinion" methodology embraced by Judge VanDyke in this case (for reasons having nothing to do with gender) and for the hundreds of writers of alternative opinions as part of Feminist Judgments projects worldwide (for reasons having much, but not only, to do with gender).

[ever and anon]

"And as for your characterization that the Feminist Judgments projects represent political activism but Judge VanDyke's opinion does not, I think that except at the margins, what is "political" is in the eye of the reader. Judges bring prior commitments and lived experience to the decisionmaking process."

How do you reconcile these two statements?

[anon]

Bridget:

HEre is where I believe the core of our difference in observation is found.

You say: "My point is about the similarity of *methods*--namely, showing that judges using different reasoning can reach the same results.

To the contrary, the point of VD's "alternative opinion" was to demonstrate how judges could use different reasoning to reach different results.

The majority held: "The district court erred in determining that Jacobson applied to Appellants’ Second Amendment claim, and in the
alternative, that intermediate scrutiny applied. It also erred in determining that the Orders survived even intermediate scrutiny. We therefore reverse the district court’s order
granting Appellees’ motion to dismiss and remand for further proceedings

The alternative opinion concludes: "For these reasons, we affirm the district court’s dismissal of Plaintiffs’ complaint for
failure to state a claim."

VD's point was that the standard of review was insufficiently rigorous. The "alternative" was simply to demonstrate that a court could easily reach a contrary result, not teh same result based on different reasoning.

For these reasons, and those stated above, I don't think this is even remotely analogous to the use of "alternative opinions" to which you have referred.

[Bridget Crawford]

Hmmm… but my originally post was clear that some feminist judgments do reach different results for different reasons. Either way, Judge VanDyke’s “alternate opinion” deploys the same methods as the feminist judgments projects do. I think my original post had a very “small” claim, but language is imperfect and glad to hear your views, @anon1.

[Bridget Crawford]

@everandanon, if individual perspectives = politics, then the statements are, indeed, irreconcilable. Then all judging is revealed as political and there is no such thing as true neutrality. Seems about right, in a broad sense, but I don’t think that’s what the first poster was referring to when he called feminist judgment writers “political activists.”

What do you think about @anon2’s question of whether Judge VanDyke was being sarcastic and, if so, whether sarcasm is appropriate in a judicial opinion? I would say it diminishes the overall tone and effectiveness of what I think is truly an extraordinary exercise in persuasive writing.f

[anon]

Thanks Bridget.

One additional point, regarding realism ("Judges bring prior commitments and lived experience to the decisionmaking process.")

Yes, however. I think VD's point was exactly to decry this view. He made the point again and again that if a standard of review is too loose, then any decision will be possible.

He may not have made the precise point as specific as this, but I think he would argue for standards that promote intellectual rigor, not decisions based on a maxim as amorphous and idiocentric as "empathy." Perhaps that made more sense in the 11th century ecclesiastical courts in the Kingdom of England.

I would hope we all remember this:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Stop, please, to consider a person before this judge. This person has different life experiences from "that" life (as she understands or doesn't even know); is a different gender; is of a different ethnicity (at least insofar as she determines based on superficial looks).

Might that person feel a bit uneasy about relying on such a Judge to decide a case against that person based on her "empathy" (or lack thereof) for him personally, based on her sentiments, superficial judgments based on her guesses about immutable characteristics like race, ethnicity and vague, probably inaccurate assumptions about "that life" as lived by an individual she knows nothing about?

Is that what we want, "Judges bring[ing] prior commitments and lived experience to the decisionmaking process."

My point is, judicial realism, while stating some truth, should be carefully controlled and never held out as a governing standard.

I believe that VD would agree.

[ever and anon]

Hi Bridget,

I think the jig is up for common law judging simpliciter. So, worrying over matters of appropriateness, or aiming to provide ideological re-writes to show how things might have turned out otherwise (without providing non-believers any reason to believe that those would constitute superior outcomes), is to miss the forest for the trees.

[anon]

Again, I think all commenters need to read VD's "concurring opinion." It really doesn't have anything to do with any of these observations.

VD wanted to provide the en banc panel with a look at how a "dissent" might have looked; or, if they do as he anticipates, what their opinion might be. He sought to show how easily the case could have been decided the other way,
to support his view that "our circuit can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review.":

"I can demonstrate just how easy it is
to reach any desired conclusion under our current framework, and the majority of our court can get a jump start on calling this case en banc ... in a few easy steps any firearms regulation, no matter how draconic, can earn this circuit’s stamp of approval."