Judge Robert Dierker could have made a fine Supreme Court justice. His convictions cost him

Beneath the high domed forehead, Robert Dierker’s cheeks are pale and hollow, unpadded by indulgence; it’s as though you’re seeing through to the skull. The long face is brought up short by that bow tie in the same way that bits of humor punctuate his dry, scholarly arguments. His usual expression is as solemn as, well, a judge—but there’s a glint of animation behind the spectacles, hinting at an impulsivity you wouldn’t expect from this foolproofed brain. Its thoughts line up as neatly as safe-deposit boxes in a marble vault, but that tiny bit of recklessness carries a certain danger. He acknowledges it and strides on, clinging to the conservativism he believes will protect us all. 

A judge for three decades, Dierker is known for possessing one of the most brilliant legal minds in Missouri—and one of the most fiercely opinionated. Outside the confines of a wood-paneled courtroom, his personal convictions set many people’s teeth on edge. But within those confines, he’s won the respect of other judges, attorneys on both sides, jurors, even criminals.

Dierker was a natural for the appellate court, even the Missouri Supreme Court, possibly SCOTUS. His demeanor would cast him as one of those irascible old-school law profs beloved by screenwriters. His fascination with the minutiae of government and the U.S. Constitution suggest the role foreshadowed by his childhood nickname: The Senator.

Yet the highest position Robert Dierker ever attained was a two-year stint as presiding judge in the 22nd Circuit, and he left the circuit early to become chief trial assistant for a controversial, inexperienced circuit attorney—lasting just eight months before he took a job reporting to a man who used to work for him, city counselor Julian Bush. 

Were Dierker anyone else, you’d guess that some sort of vice or scandal had doomed his ambitions—but his conduct in both public and private life is irreproachable. 

It’s his timing that sucks. 

A Republican in a Democratic city government, a conservative judge in a liberal circuit, he was so consistently out of sync with the political clime, it felt like he’d donned woolens and galoshes for the tropics. Worse, he refused to schmooze or gather favors. He tossed years of cautious, meticulous jurisprudence overboard with a few angry rhetorical flourishes in a sexual harassment case, and he was so outraged by the resulting outrage that eight years later, when he’d finally given up altogether on his ambitions, he wrote a book called The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault. In its pages, he vented decades of frustration by articulating, in blunt and cheerfully insulting language, opinions almost entirely out of fashion. 

It might be different now. The stigma clings, though: Even people close to him rush to assure me that they “never read that book.” The few who admit to perusing it say its content suggests a man who is nothing like Bob Dierker, that if you try to deduce the man from the book, you’ll be confounded.

How, then, did someone who is respected above all for his integrity wind up perceived as two different people? And is that his limitation, or ours? 

THE SENATOR

A kid that smart, you’d expect to love school. Bob Dierker hated it. And his mother hated Lemay, where his father, a railroad freight solicitor, had settled them. Dierkers had been in Lemay for generations—but those alive at the time weren’t especially welcoming to Robert Sr.’s new wife. So the family moved to 37th Street near Grand and Meramec—and Bob hated the Resurrection of Our Lord parish school even more. 

Home was a refuge: The family watched old movies together in the evenings: Bringing Up Baby, Casablanca, The Philadelphia Story… School, though, was miserable. Brainy, unathletic, and indifferent to social cues, Bob comported himself as a respectable middle-aged adult, and he was bullied ferociously by kids who couldn’t even act their own age. Finally, a parish priest intervened, giving Bob his first taste of the orderly peace an authority figure can impose.

For high school, his mom was so determined that he’d go to the elite new Augustinian Academy that she took a secretarial job there. (She wouldn’t have needed extra influence; he aced the entrance exam and won a scholarship.) Students were required to wear a sport coat and tie; Bob wore a navy suit and bow tie. Enthralled with Washington Irving, he imitated that ornate, overworked 19th-century prose. But even through that thicket of solemnity, you could see glints of “a Monty Python sense of humor,” says Tom O’Rourke, a close friend to this day.

Monty Python? “But that can get silly,” I point out.

“Yeah. So can Bob. It’s an unusual sense of humor. He can enjoy the absurdities of things.” As kids, they cracked themselves up coauthoring Gone With the Smoke Signal, a novel about a cavalry officer’s comical adventures out West. “I don’t think I ever saw him distressed by anything,” O’Rourke remarks. “He’s the eternal optimist.”

Bob’s little brother, Jim Dierker, inherited the athleticism of their father, who used to swim marathons in the Mississippi. Jim would go on to play football for Mizzou, then rugby for the St. Louis Bombers, doing his share of “stair-diving, chandelier-eating, keg-stealing” along the way, if nostalgic teammates are to be trusted. Bob, on the other hand, inherited their father’s love of law and order and politics. He finally fell in love with school when his freshman social studies teacher engaged him in class discussions (then couldn’t shut him up). And the real fun started when he volunteered to debate as presidential candidate Barry Goldwater. 

Early in life, we inhale our parents’ opinions; if they’re cohesive enough, they lend us a worldview. The Dierkers were backing Goldwater: Bob’s mom because she hated Lyndon Johnson (she thought he’d had John F. Kennedy assassinated) and his dad because he’d been Republican ever since Franklin D. Roosevelt “went too far.” Diligent, Bob wrote to Goldwater’s campaign office. When a staffer replied with Goldwater’s book and a fat packet of literature, he was over the moon. None of the other kids had even thought to do this, let alone reel in such a haul. He argued Goldwater’s case magnificently, urging limited government and fidelity to the Constitution, and he earned “The Senator” as a nickname.

Goldwater would alarm many Americans with his hawkish fear of communism and his insistence that welfare should be the private concern of churches and charities. He’d lose by what was then the largest margin in U.S. presidential history, and he’d continue to pay a price for his blunt vehemence: “There are words of mine floating around in the air that I would like to reach up and eat,” he’d say later. Though he’d taken practical steps to end racial segregation, he’d vote against the 1964 Civil Rights Act because he deemed it unconstitutional. Increasingly libertarian, he’d finish his career as a widely respected elder statesman—“an American original,” in Bill Clinton’s words—with friends on both sides of that blood-soaked aisle.

Dierker’s life would take an eerily similar arc.

“HOLA, HOLA, HOLA”

Even on his first day as judge, Dierker was out of sync. He gowned himself and strode into the courtroom. At age 8, he’d drawn a picture of himself as a judge. After law school at the University of Missouri–Kansas City—where he was so homesick, he rented Bringing Up Baby, Casablanca, and The Philadelphia Story on weekends—he earned a master of laws degree at Harvard and clerked for Judge Joseph Simeone in the Missouri Court of Appeals. He gathered experience as a municipal judge, then moved into the city counselor’s office. Now, his destiny was about to be fulfilled.

Except that nobody was there. 

“What happened?” he asked the clerk.

“You’re new,” she said. “They want to wait and see what you’re like.” Dierker called the presiding judge: “I’m here, ready to work. Can you send me something?” 

This pattern would continue; if his docket “blew” and no cases were ready to be tried, he’d seek out extra work. He ran his courtroom formally, adopting the federal model, and he set a brisk pace, refusing to grant continuance after continuance. “Justice delayed is justice denied,” he explained. “If you let these cases linger, it’s not fair to anybody.”

Recently retired Circuit Judge Phil Heagney felt the sting of that conviction when he took over the equity division. Then presiding judge, Dierker chided him for taking too much time to write his decisions: “You are a trial judge, not an appellate judge. You hope you get it right, but there’s also some benefit to getting a decision to people, period.” Dierker’s tone was even, his tone matter-of-fact. In court, though, he was famously intimidating. 

“I could be a martinet when it suited me,” he concedes. Asked whether he cultivated that persona to scare young lawyers, he grins: “Possibly.”

What mattered to Dierker was that both sides felt that the playing field was level. Even criminal defense lawyer Brad Kessler, as rebellious and liberal as Dierker is formal and conservative, says, “I always found him to be extremely fair. He never interfered in any way with the presentation of evidence, listened closely to the grounds of any objection, and ruled soundly. I never felt as though his rumored political opinions interfered. He’s very funny, in an eggheaded sort of way, and I always had luck at making him laugh at some point during a trial.”

Early on, Dierker had a bailiff who mispronounced “Oyez.” One morning, after enduring yet another “Hola, hola, hola, court is now in session,” the judge nodded to the attorneys and said dryly, “Buenos días, gentlemen.”

When he became presiding judge, in 1997, his bailiff was, to his relief, David Gaither, who had a resonant booming voice and a regard for the sanctity of the courtroom that rivaled Dierker’s. On day one, the judge handed him the gavel and said, “You open court with this and put the court in recess with it.” Gaither laid the gavel carefully on his desk.

“I was proud to be his bailiff, and I’m happy to call him a true friend,” he says now. “I’ve had black bosses, I’ve had white bosses, but I’ve never met a man who was as fair as Judge Dierker. He was firm, too, and he was never afraid to say if he felt something was wrong.” Gaither says he cringes when he sees young African-American men about to break the law and older men standing by, so eager to seem cool that they won’t dissuade the kids. “If we had more judges like Judge Dierker,” he says, “we wouldn’t have minority communities saying the judicial system is not fair.”

District Defender Mary Fox, who oversees most of the circuit’s criminal cases, agrees—with a major caveat: “I have been disappointed in his inability to see that defendants can change, especially the young ones. I have clients who received sentences I think were way too harsh.” She’s seen him give second chances in instances of nonviolent crime, substance abuse, or mental illness—but virtually never after a violent crime. (In 2005, after members of the Six Deuce East Coast Crips went on a weekend rampage, racking up five carjackings and an attempted robbery that ended in murder, Dierker lambasted them for inflicting a “reign of terror” on the city and handed out sentences of 240 years and 227 years.)

Still, Fox says, “he runs a good trial. I didn’t get everything I wanted from him, but I always understood his legal reasoning. Many times, I’d go to him for his perspective and he’d point me toward the law that either supported my position or showed that it was incorrect.”

She chuckles, remembering his disdain for cell phones in the courtroom. One day he needed some information, and she teased, “I could get that for you, Judge, if I could use my phone.” He gave weary consent: “I have come to realize that cell phones are now attorneys’ briefcases.”

But he still uses a flip phone.

A onetime plaintiff recalls Dierker as “a Harry Potter character in the robe and glasses. He’d walk through at a fast pace and the robe would flutter.” (Actually, one of his daughters says, his favorite characters are the Dursleys; he finds them “droll.”) Before trial, the plaintiff was advised that women should not wear pants in Dierker’s courtroom—but it turned out that he was just as pleased when men wore formal suits; the goal was decorum all round. 

During the trial, the plaintiff was relieved to see that Dierker “always took the time to try to understand. He’d create his own distinctive mark on the case, view it in a broader way, add some flavor. One juror had a physical disability, and Dierker went to great lengths to keep him on the jury, making sure he got a taxi ride home, because he swept floors and had a long walk to the bus stop. Dierker acted the way you’d expect a judge to act in the movies. He wasn’t just a judge; he was the character of a judge.”

HOW DOES HE REALLY FEEL?

Dierker has written many a legal opinion at odds with his private beliefs. What’s been predictable is his emphasis on transparency. He once requested an audit of the circuit clerk’s office. He ordered the St. Louis Police Metropolitan Department to release Internal Affairs documents. In Carroll v. Corcoran, a 1993 case in which Karen Carroll, former general manager of KMOX Radio, sued radio personality J.C. Corcoran for defamation, Dierker—who is unfailingly courteous—found, with a sigh, that Corcoran's "puerile" on-air comments could not be construed as statements of fact. Rather, they were, “in essence, a case of juvenile namecalling: offensive, crude, boorish and reprehensible, but not defamatory in law. Stated simply, it is modern broadcast journalism at its best.”

A devout Catholic, Dierker nonetheless mandated the Archdiocese of St. Louis to release the names of priests accused of sexual abuse over the past 20 years. When that didn’t happen, he wrote that “the dogged refusal of defendant Archdiocese to comply with the Court’s order…borders on if not actually amounting to contempt.”

He blocked developer Paul McKee from receiving $390 million in TIF dollars because he’d shown no plans specific and concrete enough to meet the standards of the ordinance. “The city might as well designate its entire corporate boundaries as a redevelopment area,” Dierker wrote. McKee’s Northside Regeneration prevailed in the Missouri Supreme Court, winning back the TIF—but McKee failed to make use of the financing, and Dierker’s assessment was vindicated.  

When the city’s living wage ordinance came before Dierker, he pronounced it constitutional—even though he privately thought wage laws were “basically a sham, because if they set the floor too high, people lose jobs, and if it’s too low, it’s irrelevant.” The ordinance was invalid only because it was “fatally vague,” he decided. “Even the sponsor admitted that nobody could understand it.” 

In land-use cases, he set aside his personal priorities—“As a conservative, I’m all for historic preservation”—to note that the law supported the owner’s right to demolish the building. “The Constitution protects life, liberty, and property. It’s all there in the same phrase.”

Dierker did allow himself to vent his exasperation with “the city’s arcane land-use philosophy,” though. “It’s designed to thwart all development except that which is approved by the alderman in that particular ward,” he says, “and it’s needlessly complex, so very few lawyers can figure out how to navigate it.” He once pronounced the “regulatory labyrinth of the city…so recondite that it defies comparison.” 

JOURNEY TO CLOUD CUCKOO LAND 

Dierker wrote his most controversial opinion in a 1998 sexual harassment case that must have struck him as charged with universal significance, because it goaded him into quite a rant. A woman had gone to work for her psychiatrist, then had an affair with him. She claimed that when she broke it off, he began calling, tracking her down, trying to touch her at work, importuning her for sex…and when none of that worked, he fired her. She’d tried unsuccessfully to sue for employment discrimination in federal court, and now she was attempting to sue for emotional harm. 

Dierker found no support for her case in Missouri’s sparse law on sexual harassment, so he ruled against her, tossing away two of her claims and suggesting a way to revise the remaining claim of emotional harm to meet what he believed to be proper legal standards. His opinion took scattershot aim at “the denizens of the cloud cuckoo land of radical feminism,” saying they refused to accept the fact that “no court had ever held a sexual advance to be actionable in and of itself.”

Today, he calls the “cloud cuckoo land” phrase “one of my deathless bons mots,” sounding wryly pleased with himself. “I still think the radical feminists had and still have a very definite agenda, skewing the law in a way that takes it from being evenhanded to being tilted in a certain way.” He concedes that the law itself “certainly tended to be pro-male. A former Harvard law dean summed it up as ‘It doesn’t hurt to ask.’” But in Dierker’s opinion, the converse—“If you ask, you’re automatically liable”—was just as bad. “I felt it was my obligation to strike a balance,” he says, then sighs. “Some of my rhetorical flourishes didn’t go down so well.” 

Soon after the book came out, Missouri’s judicial discipline commission notified Dierker that someone had filed a complaint accusing him of “preconceived bias against women, female lawyers, or sexual harassment suits.” 

He “evaded the sensitivity gulag,” as he put it, without further censure, but his anger at this attempt to censor a judge boiled and bubbled for the next eight years. In Tyranny of Tolerance, he recounted the case, taking sharp issue with “femifascists” who he said based their agenda on hatred for men and did not disguise their hostility toward marriage and motherhood. Thanks to liberal judges, he wrote, “sexual harassment law threatens to become a weapon by which the femifascists can ensure the oppression of men.”

Dierker didn’t stop with sexual harassment; he also excoriated “illiberal liberals” who “want to make some people more equal than others,” citing affirmative action, the near-infinite post-conviction delays in death penalty cases (he’s presided over nine), and gun control measures he felt contradicted the Constitution. 

It was rather a shock for a sitting judge to hold forth so openly and so boldly. Reporters pointed this out. “If I wrote a law review article,” he retorted, “who would read it?” 

Michael Wolff was chief justice of the Missouri Supreme Court when the book came out. “I said I felt I could either read the book or defend his right to write it,” Wolff recalls with a twinkle.  

Dierker ended the book with a jesuitical disclaimer: Though his opinions were inextricable from his experience as a judge, they were personal and should not be construed as any indication of how he would rule on any particular case. The use of his title was “strictly for identification.”

Ward 24 Alderman Scott Ogilvie was one of the multitudes who didn’t believe him. Ogilvie later tweeted, “His whole career he’s showed an open hostility towards women and equal rights.” 

“I think he confuses hostility to what I see as pernicious legal doctrine with hostility to women,” Dierker says equably. “I think the women who have appeared in front of me feel pretty confident that I was evenhanded. I confess to a certain hostility to the intellectual, legal framework of radical feminism. But hostile to women? I don’t see that, myself.”

To this day, Dierker stands by Tyranny. It was, he believes, prescient in many ways: “I think I foresaw the homosexual marriage case. The growing intolerance on the left becoming very oppressive to people of faith. A continued expansion of judicial power. The perversion of the civil rights legacy in turning the principle of equality into an instrument of repression.”

I ask whether he feels he paid in any way for writing the book. “I suppose so, ironically, because the book wasn’t all that successful! I think if I brought that book out today, it would strike a chord. But the timing…” He slowly shakes his head.

HEARTH AND HOME 

Heagney was once startled to come upon his stern colleague at a ball field, a score book in one hand and a bag of bats in the other. Dierker was helping coach his daughter’s softball team. 

“Ah, yes,” he says now. “We had several consecutive winless seasons. I think we finally won one game by forfeit.” He talks often about his three daughters (tearing up when I ask about becoming a father) and his wife, Dotty. He was 33 when they married, and she’d been married before, so he inherited two sons. 

“The day he married my mother,” says his stepson Scott Carlton, “was one of the greatest turning points of my life. Bob is the purest example of someone who aims to simply ‘do the right thing.’ He is an amazingly decent human being.”

When Bob and Dotty had their first baby, she was calm; he was terrified. But “it just felt so natural,” he says, his face softening in wonder. “One day she was in Mommy, and the next day she was there.” 

When Dotty was at work, he made the girls cinnamon rolls for breakfast and packed lunches. Evenings, they watched movies together: Bringing Up Baby, Casablanca, The Philadelphia Story...

When Judge Anna Forder brought her toddler to work with her, Dierker always frowned, thinking, “I would never do that.” Then came a day when he had the care of his youngest and no one in chambers could watch her. He brought her into the courtroom and settled her with a doughnut. She wriggled off her seat and climbed up into his lap.

“I proceeded to take a guilty plea with my daughter sitting in my lap,” he says, wincing. “Anna Forder’s revenge.”

Lawyer Alan Baker became friends with Dierker when they bonded in kindergarten. “There were several occasions when I appeared in front of him, and trust me, he gave me no advantage,” Baker says, “even if he knew that I was going to pick up his daughter from school that afternoon.” He remembers driving home together from a father-daughter banquet, the girls giggling in the back while he described a case, saying, “I can’t find any law that backs me up.” Steering through downtown traffic, Dierker said, “Have you read the revised version of statute—” and reeled off the number. “It was just amended last year.” 

“Who would know that?” asks Baker. “He won that case for me.”

What seals their friendship, though, isn’t brilliance; it’s kindness. “There’ve been times somebody in my family has been ill, and at night there’s a knock on the door, and he’s delivering a pot of stew,” Baker says. “He’s the kind of friend you don’t have to tell when you have a problem. He senses the problem.”

Tyranny sits under the Bakers’ television, but it’s turned so they can’t see the title. “My wife’s a feminist—she runs a shelter for battered women—yet she’s crazy about Bob Dierker,” Baker says. “I don’t know where those rivers meet. If somebody read the book and tried to transfer what they read to his personality, they’d miss the target, because if a woman was being picked on, he’d protect her.”

Dierker’s recreational pursuits are easier to predict: Jane Austen, The Wall Street Journal, bridge. When I ask what music he likes, he says, “Mozart, French Baroque. Some jazz. Ragtime.” He reminisces about the Goldenrod showboat, but I’m still stuck on jazz. It seems a little…unmoored…for a man who’d choose a Steak ’n Shake cheeseburger for his last meal. Who does he like? Miles? Bird?

“I’m hard put to name anybody in particular,” he says. “I was in New Orleans years ago and went to—was it Herb Alpert? And Pete Fountain. So I heard some great jazz in New Orleans.”

Dotty’s broadened his culinary horizons, nudging him from meat and potatoes toward Mexican and Chinese. Intensely private and a little shy, she refuses to be interviewed. 

“It’s a very traditional marriage,” O’Rourke tells me, but not one that leaves a wife powerless. “She knows what she thinks is right, and he’d better fall in line.”

I grin, remembering his consent to be interviewed: “I have my wife’s permission.”

A few days past deadline, Dotty emails. “He reports having described me as a ‘private’ person, which does make me hesitant to get too ‘touchy-feely’ (one of Bob’s favorite terms),” she writes. “He has always seen things in black and white. I equate that with his love and respect of the law.  I’d like to think that perhaps I’ve influenced him to see shades of gray in some situations...especially as a parent. While there is good and bad, sometimes something in between can be acceptable.”

HIS PHILOSPHY

When it’s time to talk more deeply, Dierker steers me to his beloved downtown law library. He’s led the charge to save the place, a refuge from another era. Folding his long frame into one of the burgundy-striped chairs, he sets down a rolled-up umbrella; sprinkles are forecast. In here, though, we are sheltered. Sitting in a golden pool of lamplight, neat rows of leather-bound books behind him, he begins to speak.

For weeks now, I’ve been trying to mesh his fairness and fine moral compass—his consistent hiring of African-Americans and women, his respect for female colleagues on the bench, his pride in his daughters’ accomplishments—with his apparent judicial indifference to the plight of women and minorities who’ve had the scales of justice weighted against them for centuries. He wants the court to be utterly neutral, yet he speaks in partisan terms and describes people as they pass through his filters, noting whether they are radical feminists, whether they are Republicans. He defines conservatism exactly the way Goldwater did, as holding on to that which is tested and true and opposing change simply for the sake of change. In liberal law, he wrote in Tyranny, “history and tradition count for nothing; the language of the Constitution itself counts for little; the only criterion is whether a ruling will advance the liberal agenda.”

Put simply, Dierker believes we should be guided by the intent of the Founding Fathers: “If each generation can ascribe its own meaning to it, then we don’t really have a constitution.” Yes, the Constitution was written by and skewed toward white males, but it is the law that binds us, and only lawmakers can change it. “Liberal judges who try to set new precedents are swinging the pendulum too far in the opposite direction, making those whose interests were slighted ‘more equal than others.’”

Dierker insists that the path to justice is equal treatment under the law and that the Constitution is already colorblind and gender neutral. (Next he’d like to write a book titled The Colorblind Constitution.) Affirmative action “got us into a regime of ‘Some are more equal than others,’” he says. “I was in the school deseg case for a long time, and I think everybody recognizes now that the remedies the federal courts used only created a new set of problems.” His lips press together in disapproval. “Justice [Ruth Bader] Ginsburg talked about benign discrimination; I don’t accept that there is any benign discrimination.”

Then how do we achieve a more just society?

“Well, as a Catholic, I don’t believe the world is perfect—or will be until the Second Coming. I am very concerned by the way we’re suddenly talking about ‘equity’ rather than ‘equality.’ What we’re really saying is, we’re going to treat some people differently. We’re going to have the law carve out special exceptions. 

“For me, as a lawyer, ‘equity’ has a very definite meaning,” he continues, “and the meaning is that it varies according to the particular circumstances of the case. Equity was a system of jurisprudence that evolved to avoid the law. You’re talking instead about a balancing act. It’s a very squishy concept.”

Dierker abhors squish. 

We return to the gray terrain of sexual harassment: When it’s not covered by the Constitution, what’s the proper remedy?

“Well, if I could rule the world,” he retorts, “the answer would be that men behave as gentlemen and that women behave as ladies. I have daughters. I’m very sensitive to how they are treated. By the same token, I’m also sensitive to them not taking on the role of victim and thinking they should somehow be treated differently. This is my theme. I want equal justice under the law.”

Tentatively, I point out that standards of gentlemanly and ladylike conduct have pretty well vanished. 

“There’s been a general coarsening of society,” he says. “I think the behavior of people is a reflection of a moral decay. What do we do? Not having been a federal judge, I’m not omniscient.” Zing. “At times,” he adds, “you feel like you are in the Roman Empire in the fourth or fifth century.” Behind the spectacles, his eyes are troubled. “I’m not sure where we look now.”

In the end, Dierker sees government’s role as preserving liberty, not solving social problems—many of which are, as he once said of sexual harassment, “best left to church and family.” 

“I could rail all afternoon against Lyndon Johnson and the Great Society,” he remarks. “The expansion of the entitlement state has had a serious effect on the family. It’s driven men out and substituted government for family and religion.” He pauses. “If Goldwater had won in ’64, we’d be having a completely different conversation.”

The judge’s dream ticket today would be Condoleezza Rice and Colin Powell. Dierker “can’t defend Trump on a personal level” but says he’ll probably vote for him, “because of the opposition.” He would have voted for Obama the second time around, he says, “if in his first inauguration he’d said, ‘Standing before you is the embodiment of the American Dream. Let’s move forward together.’ But he did not usher in a post-racial era. He chose not to.”

Does Dierker think we are post-racial?

“I think we could be, but I think there are forces at work that don’t want us to be. They are working to keep us divided.”

Heagney disagrees with his former colleague about historic injustice: “There’s been a huge push to look at the beliefs and attitudes we’ve adopted and say where they are not right. I don’t think Bob has moved nearly as much as some other people have. At the same time, I don’t think at a personal level he would ever discriminate.”

A close observer thinks “Bob Dierker is actually very consistent: If liberals care more about results and outcomes for real people on the ground, he cares more about process and tradition. I get the sense that he would be content in some cases to let the dead bury the living and would consider that a necessary evil in order to preserve something he considers more valuable, which is adherence to the rules and continuity with the past.”

O’Rourke says his friend is “straight up and down: This is the law. He doesn’t see it as the government’s responsibility to make people comfortable or happy. That’s up to them.”

I ask how Dierker gets misperceived. 

“You mean by himself?”

I meant by others, but if he misperceives himself, that’s even more interesting.

“I think he thinks he’s right more often than he is,” O’Rourke says. “Sometimes I think he just doesn’t see it.”

GARDNER AND GREITENS

“This was my favorite part of the job,” Dierker says, leading me into the Division 16 courtroom he was slated to take over had he remained on the bench. “Omigod, it’s the ghost,” someone calls, and there’s a flurry of affectionate banter. This is the criminal assignment docket, which often bogs down as lawyers beg for more time. Dierker was gathering opinions about how to make the docket move more efficiently when he arranged a lunch with the new circuit attorney, Kim Gardner.

Before he had a chance to ask her views, she’d offered him a job training her staff. When he didn’t jump at it, she changed the offer to chief trial assistant.

He’d have to leave the bench in two years anyway; the mandatory retirement age is 70. In the circuit attorney’s office, he could stay as long as he wanted.

He took the job.

At that point, Gardner was already preparing a case against then-Governor Eric Greitens, charging him with invasion of privacy for allegedly photographing a woman partially clothed and tied to his exercise equipment, then threatening to use the photo if she ever revealed their affair.

Gardner didn’t have the photograph.

Dierker set to work researching the chance that they could prove its existence circumstantially. “I thought the case was worth prosecuting,” he says. “I think the victim was credible. I think the circumstances, quite apart from the identity of the defendant, warranted prosecution.”

How was this different from the cloud cuckoo land case, in which he’d found against a woman who claimed to have experienced far worse?

“The law specifically criminalizes this kind of conduct,” he explains. “Absent the statute, it would have been ungentlemanly but not a crime.” It was perfectly reasonable, he wrote in a memorandum, for Greitens’ lover to “entertain a belief that she could disrobe without being photographed or filmed by another. Disrobing for one purpose is not disrobing for all purposes.”

The case met with one hurdle after another: Gardner was pilloried for hiring an outside investigator, who was then accused of perjury, and when it looked as though Gardner herself would be put on the stand, Dierker wrote a masterful writ in a single day, “a Hail Mary, to prevent what we felt was going to be a completely intolerable unprecedented situation.” Just as he waved the writ aloft, Gardner dismissed the case.

Eight months after joining the circuit attorney’s office, Dierker left to take a job with the city counselor. He was courteous in his explanations, emphasizing the appeal of returning to congenial work with his friend (and now boss) Julian Bush. But O’Rourke is happy to fill in his friend’s gracious omissions: “He was really uncomfortable working there. He said [Gardner] was doing things and not informing him, and he didn’t know what the heck was going on.”

This is plausible: Even as Dierker filed a document stating that “the special investigator…testified untruthfully” but Gardner “corrected all errors and misstatements,” she was continuing to deny that the investigator had committed perjury.

“I think Bob thought he could save her from relying on idiots,” says a legal insider. Instead, he was realizing just how little control he now had—and “just how much goes into gathering the evidence to prosecute a case.” Until now, he’d seen criminal cases packaged up neatly and presented to him at scheduled times. Now it was a matter of teasing out evidence, weaving it into a coherent narrative, building a case from the ground up. Plus, he was superintending 1,800 felony cases and trying to support 40 lawyers, and the work flowed like unstanched blood. 

Ceaseless work had never bothered Dierker before. He’d spent years on the deseg case and months on dioxin. He welcomed the need to parse and analyze every angle and nuance.

This, though, was more about managing chaos than about creating order.

TRAGIC FLAW?

It is likely that Dierker is now in the office where he’ll end his career. 

In the early days, says employment discrimination lawyer Mary Anne Sedey, he was “quite the young Republican up-and-comer. Everybody expected he was going to get to the Eighth Circuit. I come from the opposite end of the political spectrum, so I was always thinking, ‘Oh my God, what’s going to happen if he gets to be a federal judge?’”

Then came cloud cuckoo land. “He painted all of us with a very broad brushstroke, and it’s not true,” she says, “and he knows it’s not true.” Whenever she was assigned to Dierker’s courtroom with a sex discrimination case, she asked for a change of judge. “A lot of judges take that personally,” she says. “I’d go in and say, ‘You know, Judge, it’d be malpractice for me not to take this change,’ and he’d laugh, very easygoing about it. I like Bob Dierker. I think he’s a really interesting guy. When I was on the judicial commission, I’d ask the young lawyers applying for associate circuit judge positions who was a role model for them; whom they’d learned from about how to be a judge. So many of them, from all political backgrounds and both sides of criminal and civil practice, would tell me Bob Dierker.”

Was it his blunt, quirky independence that thwarted him, then, or his political views, or the powerbrokers’ biases? 

He points out that even in the administration of Republican Governor Matt Blunt, the judicial commission “was very hostile to conservative Republicans. It had three lay appointees, all of whom were radical feminists. They basically shut out candidates the governor was interested in. That’s sour grapes. So be it.”

Chip Robertson, former chief justice of the Missouri Supreme Court, also thinks that “Bob’s intensity and integrity might have been off-putting to some people. There is never an easy escape route for him. He’s not going to betray the long-term for the benefit of the short-term.” Wolff, who came later as chief justice, believes Dierker “would have made a fine appellate judge. He was one of the rare trial judges who’d sit down and write an opinion that sounded like an appellate court opinion.”

Jerry Carmody served on the appellate judicial commission from 2000 to 2006 and says he advocated for Dierker—but “people had gotten copies of his [cloud cuckoo land] decision sent to them. I think he decided, ‘I’m never going to get past where I am now, so I might as well write this book’”—and years of pent-up frustration found their way onto the page. “He sent me a signed copy: ‘To Jerry. Thank God you kept another extremist off the appellate court. Yours in the fight, Bob Dierker.’”

There went the higher court. What about teaching? 

Dierker shrugs: “Law schools don’t want conservatives.”

He was off by a decade. Maybe more. I ask whether he ever feels like he’s in the wrong century, and he laughs: “Well, yeah, I’ve sometimes felt I’d be more at home in the 18th century. What developed in America then was remarkable. It was about liberty and the rule of law and limiting government.”

Toward the end of Goldwater’s career, he pronounced streamlining of command channels at the Pentagon “the only goddamn thing I’ve done in the Senate that’s worth a damn.” Dierker’s singular achievements are just as important—and just as wonky. His book on Missouri criminal law is a bible, dictionary, and manual rolled into one, consulted regularly by defense lawyers and prosecutors alike. “I didn’t read Bob’s political book,” says Heagney. “A book I did read and in fact used almost the whole time I was a judge was his handbook on criminal law.” Bush doesn’t think “there’s a single legal publication that’s as useful.”

Lucidity is Dierker’s gift. Paula Gianino, then president and CEO of Planned Parenthood of the St. Louis Region, credited Dierker for trying, in a 54-page decision, “to clarify what, in our view, a bad piece of legislation says or doesn’t say.” Backers of the city’s living wage ordinance wound up thanking him for dismissing it, saying he’d drawn them “a clear road map.” When Mayor Vince Schoemehl went up against Comptroller Virvus Jones, Dierker’s opinion outlined the proper relationship between the comptroller and the Board of Estimate & Apportionment. Both men thanked the judge afterward; the opinion remains the standard at City Hall.

Lucid intelligence, integrity, formal courtesy—but not a ton of social finesse. Robertson remembers Dierker once saying, “If I could only be as smooth as you, no telling how far I could go.”

Instead, he was consumed by the legal puzzles put before him—and indifferent to how he was perceived. Judge Thomas Frawley (whom Dierker has nicknamed Judge Touchy-Feely) says “in our court en banc meetings, whatever suggestion he had was always for the betterment of the court as a whole. A lot of those suggestions went down in flames—but it was always for the betterment of the court; there was never any effort to advance any personal agenda, ever.”

Asked what’s been the greatest source of ambivalence in his life, Dierker groans: “I’m going to duck that question. It’s too dangerous.” A loaded silence. 

“I do tend to see things in black and white,” he says finally. “It’s not so much that I see any moral ambiguity. The tension is where I fail to measure up to my own standards.”