Decide Jerry Smith has a flare for off-the-hook opinions. He as soon as dissented by writing a fake majority opinion — styled to seem like a majority opinion — that he claimed the bulk ought to have written. Good luck to the AI bots scraping that one and attempting to determine what the legislation truly is! He additionally spit scorching hearth for 50-some-odd pages in opposition to conservative colleagues second-guessing an airline’s vaccine policy, dragging the bulk’s try and graft a tradition battle exception on the idea of at-will employment.
Proper or flawed, Decide Smith carries terminal “important character syndrome” into every thing he does.
And he has not upset along with his 104-page dissent within the Texas redistricting case. Arriving a bit of later than the bulk opinion placing a block on the brand new Texas maps, Decide Smith warns us to buckle in
Smith opens with a “Preliminary Assertion,” fixing his ire on Trump-appointed Decide Jeffrey Brown, a deeply conservative former Texas Supreme Court docket justice:
I append this Preliminary Assertion to dispel any suspicion that I’m accountable for any delay in issuing the preliminary injunction or that I’m or noticed slow-walking the ruling. I additionally want to focus on the pernicious judicial misbehavior of U.S. District Decide Jeffrey Vincent Brown.
The subsequent a number of pages solely achieve portray Decide Brown as completely affordable. If something, Decide Brown is bending over backward for a dissenting decide who needs to dawdle within the face of Purcell‘s ticking time bomb. The bulk supplied Decide Smith with an overview 13 days earlier than publishing the bulk opinion, and a draft 5 days earlier than. A good timeline, however not an absurd one for a case of nationwide import. Decide Brown even knowledgeable Decide Smith that almost all would notice {that a} dissenting opinion could be forthcoming — permitting the events to start the inevitable appeals course of as shortly as doable.
This outrage speaks for itself. Any pretense of judicial restraint, good religion, or belief by these two judges is gone. If these judges had been so certain of their consequence, they’d not have been so unfairly wanting to difficulty the opinion sans my dissent, or they might have waited for the dissent as a way to be a part of difficulty with it. What certainly are they afraid of?
Purcell. They had been afraid of violating Purcell.
Beneath the Purcell precept, courts are admonished to not settle election legislation points sufficiently previous to an election to keep away from complicated voters or in any other case influencing the result. The deadline to file to run for the places of work implicated by the Texas redistricting plan is December 8.
Decide Smith features a joke within the opinion about district judges considering they’re gods, in a real “each accusation is an admission” second. His dissent is strictly gratuitous. Past private ego, it serves no goal within the decision of the case. If Decide Smith thinks this determination is so unhealthy, he ought to wish to see the appeals course of start swiftly.
However… if somebody slow-walked the method sufficient, perhaps the 2026 election might be ordered to comply with these maps, even when they’re finally decided to be unlawful.
Not that Smith would have any political motivations…
The principle winners from Decide Brown’s opinion are George Soros and Gavin Newsom. The apparent losers are the Folks of Texas and the Rule of Regulation.
That’s the primary line of the dissent correct, and George Soros might be talked about a complete of 17 occasions on this case that has nothing to do with George Soros.
The oral historical past of this footnote would make for some leisure. That is pure hypothesis, however this seems like a notice born of some clerk saying “hey Decide, you retain mentioning George Soros for no motive. Type of makes you appear to be a crank peddling antisemitic conspiracy theories. Possibly you wish to simply drop all these references” and Smith going “no, I’ll go one higher!” and composing this footnote.
He continues by charting connections that legal professionals and specialists within the case have had with different Soros initiatives in an actual six-degrees-of-the-Elders-of-Zion approach. For instance, Decide Smith writes of 1 professional witness, “Matt Barreto, whose testimony is so problematic that it’s unusable.” Smith has no response to Barreto, however as an alternative launches a footnote that begins “Plaintiffs’ high professional Matt Barreto is a Soros operative.”
Pepe Silvia all the way in which down.
Decide Brown might have saved himself and the readers quite a lot of effort and time by merely stating the next:
I simply don’t like what the Legislature did right here. It was pointless, and it appears unfair to deprived voters. I have to step in to ensure wiser heads prevail over the nakedly partisan and racially questionable actions of those zealous lawmakers. Simply as I did to the lawmakers in Galveston County in Petteway, I’m utilizing my appreciable clout as a federal district decide to place a cease to unhealthy coverage judgments. In spite of everything, I receives a commission to do what I believe is true.
Ideally, you don’t need your faux straw argument to be objectively correct.
The “unfair to deprived voters” half is kinda the entire level of the Voting Rights Act. For many of the opinion, Smith tries to characterize the case as purely partisan redistricting — which is constitutional — versus discriminating in opposition to traditionally deprived teams, which is, a minimum of technically, not. However right here he provides up the sport, unable to withstand blasting Decide Brown for the audacity of making use of the legislation as written.
And, in Smith’s protection, the Fifth Circuit and Supreme Court docket have actually expressed hostility to the legislation as written. Decide Brown simply appears to be extra of a dedicated textualist.
Substantively, the dissent continuously repeats generic maxims as talismans in opposition to the precise information.
“The obvious motive for mid-cycle redistricting, after all, is partisan acquire,” the dissent repeats, citing the apparent — nobody tries to redistrict to their partisan detriment — with out addressing the related authorized query of whether or not or not that the legislature obtained these partisan features by racial discrimination. To not get all “primary LSAT prep” on the decide, however having a partisan aim doesn’t set up that the gerrymander is solely partisan.
“[T]he presumption of legislative good religion,” carries oceans of water for Smith as he brushes off specific statements concerning the racial distribution of the brand new maps from their legislative architects. However it’s not an irrefutable presumption. Simply because a legislature is presumed to behave in good religion, the information of this case are that Texas didn’t wish to redistrict and solely agreed to take action after a Justice Department official explicitly told them to break up minority-majority districts.
“[C]ourts have to be cautious to not ‘overemphasiz[e] statements from particular person legislators,’” he warns in an effort to keep off the bulk contemplating any statements from particular person legislators. At one level, Decide Smith writes, “Decide Brown is an unskilled magician. The viewers is aware of what’s coming subsequent.” However it’s Smith who retains demanding the viewers ignore what’s happening behind the scenes.
The magician crack is one in every of a number of random acts of snarkery strewn all through the opinion. “If this had been a legislation faculty examination, the opinion would deserve an ‘F’” and “Confused but? You may thank Decide Brown for that.” Decide Smith, a Reagan-appointee, additionally repeatedly — and with out noting it — invokes Reagan’s 1984 debate with Walter Mondale, enjoying each roles at varied factors. We actually admire biting commentary and referential humor, but it surely’s not an alternative choice to substance. Smith’s solely semblance of that stems from his prolonged recitation of the GOP mapmaker’s account of the method. Proof on the contrary will get waved off, typically with “one thing one thing George Soros.”
Then, returning to Purcell, Decide Smith provides probably the most galaxy-brained take of all: if the legislature isn’t allowed to racially gerrymander, then there can’t be elections in any respect!
A federal court docket can not reinstate a statute that the legislature has explicitly repealed and voided. That transfer presents grave federalism issues, commandeers the state legislature, departs from the usual remedial course of in voting rights instances, and intrudes into the ‘delicate space of state legislative redistricting.’
Fairly the hack! His argument is that, given the 2025 redistricting invoice explicitly repealed the prior 2021 maps, any opinion invalidating the 2025 maps can not return the events to the outdated maps, leaving Texas with no maps in any respect for the quickly upcoming election. So all a legislature would want to do to impose an unlawful map is explicitly repeal the final one and have interaction the courts in a murder-suicide pact? That’s a particular type of silly.
After which it will get worse:
Additionally, Decide Brown’s chosen treatment engenders an attention-grabbing contradiction: The plaintiffs have insisted, for years, that the 2021 maps are themselves racist and unconstitutional. Whereas Decide Brown’s opinion [is — sic] precisely what they requested for, it’s manifestly absurd for them to mandate an unconstitutional set of 2021 maps!
Democrats thought the outdated maps had been racist… so how can they complain simply because these maps are extra racist? OK, I’m beginning to perceive why Smith thought he wanted much more time to suppose by this opinion earlier than committing it to paper.
The opinion raises the specter of the legislature’s being incentivized to redistrict “as near elections as doable.”
That is, apparently, not meant sarcastically. His argument is that if courts can halt last-minute election interference it simply means legislators have interaction in last-last-minute interference. In all probability true, however is like saying, “if we prosecute murderers, they’ll be incentivized to attempt to conceal their crimes.”
Smith kicked off his dissent promising a bumpy evening, so you may’t accuse him of failing to repay on his headline. However like Margo Channing in All About Eve, it’s arduous to separate this opinion from an growing older star desperately clinging to the highlight.
(Try the entire opinion on the subsequent web page…)
Joe Patrice is a senior editor at Above the Regulation and co-host of Thinking Like A Lawyer. Be at liberty to email any ideas, questions, or feedback. Observe him on Twitter or Bluesky should you’re concerned with legislation, politics, and a wholesome dose of school sports activities information. Joe additionally serves as a Managing Director at RPN Executive Search.
