Judge Jerry Smith has a flare for off-the-hook opinions. He once dissented by writing a fake majority opinion — styled to look like a majority opinion — that he claimed the majority should have written. Good luck to the AI bots scraping that one and trying to figure out what the law actually is! He also spit hot fire for 50-some-odd pages against conservative colleagues second-guessing an airline’s vaccine policy, dragging the majority’s attempt to graft a culture war exception on the concept of at-will employment.
Right or wrong, Judge Smith carries terminal “main character syndrome” into everything he does.
And he has not disappointed with his 104-page dissent in the Texas redistricting case. Arriving a little later than the majority opinion putting a block on the new Texas maps, Judge Smith warns us to buckle in
Smith opens with a “Preliminary Statement,” fixing his ire on Trump-appointed Judge Jeffrey Brown, a deeply conservative former Texas Supreme Court justice:
I append this Preliminary Statement to dispel any suspicion that I’m responsible for any delay in issuing the preliminary injunction or that I am or saw slow-walking the ruling. I also need to highlight the pernicious judicial misbehavior of U.S. District Judge Jeffrey Vincent Brown.
The next several pages only succeed in painting Judge Brown as entirely reasonable. If anything, Judge Brown is bending over backward for a dissenting judge who wants to dawdle in the face of Purcell‘s ticking time bomb. The majority provided Judge Smith with an outline 13 days before publishing the majority opinion, and a draft five days before. A tight timeline, but not an absurd one for a case of national import. Judge Brown even informed Judge Smith that the majority would note that a dissenting opinion would be forthcoming — allowing the parties to begin the inevitable appeals process as quickly as possible.
This outrage speaks for itself. Any pretense of judicial restraint, good faith, or trust by these two judges is gone. If these judges were so sure of their result, they would not have been so unfairly eager to issue the opinion sans my dissent, or they could have waited for the dissent in order to join issue with it. What indeed are they afraid of?
Purcell. They were afraid of violating Purcell.
Under the Purcell principle, courts are admonished not to settle election law issues sufficiently prior to an election to avoid confusing voters or otherwise influencing the outcome. The deadline to file to run for the offices implicated by the Texas redistricting plan is December 8.
Judge Smith includes a joke in the opinion about district judges thinking they’re gods, in a true “every accusation is an admission” moment. His dissent is strictly gratuitous. Beyond personal ego, it serves no purpose in the resolution of the case. If Judge Smith thinks this decision is so bad, he should want to see the appeals process begin swiftly.
But… if someone slow-walked the process enough, maybe the 2026 election could be ordered to follow these maps, even if they’re ultimately determined to be illegal.
Not that Smith would have any political motivations…
The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law.
That’s the first line of the dissent proper, and George Soros will be mentioned a total of 17 times in this case that has nothing to do with George Soros.
The oral history of this footnote would make for some entertainment. This is pure speculation, but this feels like a note born of some clerk saying “hey Judge, you keep mentioning George Soros for no reason. Kind of makes you seem like a crank peddling antisemitic conspiracy theories. Maybe you want to just drop all these references” and Smith going “no, I’ll go one better!” and composing this footnote.
He continues by charting connections that lawyers and experts in the case have had with other Soros initiatives in a real six-degrees-of-the-Elders-of-Zion way. For example, Judge Smith writes of one expert witness, “Matt Barreto, whose testimony is so problematic that it is unusable.” Smith has no response to Barreto, but instead launches a footnote that begins “Plaintiffs’ top expert Matt Barreto is a Soros operative.”
Pepe Silvia all the way down.
Judge Brown could have saved himself and the readers a lot of time and effort by merely stating the following:
I just don’t like what the Legislature did here. It was unnecessary, and it seems unfair to disadvantaged voters. I need to step in to make sure wiser heads prevail over the nakedly partisan and racially questionable actions of these zealous lawmakers. Just as I did to the lawmakers in Galveston County in Petteway, I’m using my considerable clout as a federal district judge to put a stop to bad policy judgments. After all, I get paid to do what I think is right.
Ideally, you don’t want your fake straw argument to be objectively accurate.
The “unfair to disadvantaged voters” part is kinda the whole point of the Voting Rights Act. For most of the opinion, Smith tries to characterize the case as purely partisan redistricting — which is constitutional — as opposed to discriminating against historically disadvantaged groups, which is, at least technically, not. But here he gives up the game, unable to resist blasting Judge Brown for the audacity of applying the law as written.
And, in Smith’s defense, the Fifth Circuit and Supreme Court have certainly expressed hostility to the law as written. Judge Brown just seems to be more of a committed textualist.
Substantively, the dissent constantly repeats generic maxims as talismans against the specific facts.
“The most obvious reason for mid-cycle redistricting, of course, is partisan gain,” the dissent repeats, citing the obvious — no one tries to redistrict to their partisan detriment — without addressing the relevant legal question of whether or not that the legislature got those partisan gains through racial discrimination. Not to get all “basic LSAT prep” on the judge, but having a partisan goal doesn’t establish that the gerrymander is purely partisan.
“[T]he presumption of legislative good faith,” carries oceans of water for Smith as he brushes off explicit statements about the racial distribution of the new maps from their legislative architects. But it’s not an irrefutable presumption. Just because a legislature is presumed to act in good faith, the facts of this case are that Texas didn’t want to redistrict and only agreed to do so after a Justice Department official explicitly told them to break up minority-majority districts.
“[C]ourts must be careful not to ‘overemphasiz[e] statements from individual legislators,’” he warns in an effort to ward off the majority considering any statements from individual legislators. At one point, Judge Smith writes, “Judge Brown is an unskilled magician. The audience knows what is coming next.” But it’s Smith who keeps demanding the audience ignore what’s going on behind the curtain.
The magician crack is one of several random acts of snarkery strewn throughout the opinion. “If this were a law school exam, the opinion would deserve an ‘F’” and “Confused yet? You can thank Judge Brown for that.” Judge Smith, a Reagan-appointee, also repeatedly — and without noting it — invokes Reagan’s 1984 debate with Walter Mondale, playing both roles at various points. We certainly appreciate biting commentary and referential humor, but it’s not a substitute for substance. Smith’s only semblance of that stems from his lengthy recitation of the GOP mapmaker’s account of the process. Evidence to the contrary gets waved off, often with “something something George Soros.”
Then, returning to Purcell, Judge Smith offers the most galaxy-brained take of all: if the legislature isn’t allowed to racially gerrymander, then there can’t be elections at all!
A federal court cannot reinstate a statute that the legislature has explicitly repealed and voided. That move presents grave federalism concerns, commandeers the state legislature, departs from the standard remedial process in voting rights cases, and intrudes into the ‘sensitive area of state legislative redistricting.’
Quite the hack! His argument is that, given the 2025 redistricting bill explicitly repealed the prior 2021 maps, any opinion invalidating the 2025 maps cannot return the parties to the old maps, leaving Texas with no maps at all for the rapidly upcoming election. So all a legislature would need to do to impose an illegal map is explicitly repeal the last one and engage the courts in a murder-suicide pact? That’s a special kind of stupid.
And then it gets worse:
Also, Judge Brown’s chosen remedy engenders an interesting contradiction: The plaintiffs have insisted, for years, that the 2021 maps are themselves racist and unconstitutional. While Judge Brown’s opinion [is — sic] exactly what they asked for, it is manifestly absurd for them to mandate an unconstitutional set of 2021 maps!
Democrats thought the old maps were racist… so how can they complain just because these maps are more racist? OK, I’m starting to understand why Smith thought he needed a lot more time to think through this opinion before committing it to paper.
The opinion raises the specter of the legislature’s being incentivized to redistrict “as close to elections as possible.”
This is, apparently, not meant ironically. His argument is that if courts can halt last-minute election interference it just means legislators engage in last-last-minute interference. Probably true, but is like saying, “if we prosecute murderers, they’ll be incentivized to try to hide their crimes.”
Smith kicked off his dissent promising a bumpy night, so you can’t accuse him of failing to pay off on his headline. But like Margo Channing in All About Eve, it’s hard to separate this opinion from an aging star desperately clinging to the spotlight.
(Check out the whole opinion on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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