'Fasten Your Seatbelts': We've Got the Dissent in the Texas Redistricting Case...and It's a Doozy

Those of us who peruse judicial rulings for fun (or work) have, on occasion, seen spicy dissents — maybe even a blistering one or two. I'm not certain I've ever seen one quite like that authored by Judge Jerry E. Smith, the 5th Circuit Court of Appeals Judge who was the lone dissenting voice in the three-judge panel that ruled on the Texas redistricting case. As RedState reported, the 2-1 decision:

rejected Texas' newly-redrawn congressional map and ruled the state must use a map created by legislators back in 2021. The 2-1 decision followed a two-week trial in El Paso, Texas, pitting the League of United Latin American Citizens against Republican Governor Greg Abbott.

The majority decision was issued Tuesday, with a footnote indicating that Judge Smith "will file a dissenting opinion." Its lack of inclusion with the majority decision is unusual. Now we're learning a bit more about how it all went down, and all I'm going to say is that I'd pay good money to be a fly on the wall at the next federal judicial reception/gala in Texas.

There's no real way to do Smith's dissent justice (no pun intended), other than to simply invite you to read it yourself. But it's 104 pages long. (This follows the 160-page majority decision.) I will endeavor to share just a few of the highlights.

First off, when an opinion starts off quoting Bette Davis (or rather, the character she played in All About Eve), you know you're about to get an eyeful/earful:

“Fasten your seatbelts. It’s going to be a bumpy night!”
I dissent from the entirety of Judge Brown’s opinion granting a preliminary injunction.

Smith provides a preliminary statement before getting to the dissent proper. This will give you a bit of flavor:

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.
In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.
In summary, Judge Brown has issued a 160-page opinion without giving me any reasonable opportunity to respond. I will set forth the details. The readers can judge for themselves.

Smith then sets out the chronology of the events since the October trial on the matter, including the fact that he was traveling to attend funeral services for a fellow federal judge from the Western District of Texas while the majority was dropping the preliminary drafts of its opinion on him and declaring they planned to release it on Tuesday. He then sums up the impropriety of the majority's course of action:

Judges on multi-judge courts understand how important is the deliberative process to fair and accurate judicial decisionmaking. As I say later in this dissent, judges get paid to disagree as well as to find common ground. Judges in the majority don’t get to tell a dissenting judge or judges that they can’t participate. If the two judges on this panel get away with what they have done, it sets a horrendous precedent that “might makes right” and the end justifies the means.
The majority might even say “We don’t need to wait for your dissent and wouldn’t read it if we did.” Here, that sort of happened: The entry on the district court docket brings up only Judge Brown’s opinion; the reader has no access to this dissent without opening a separate, non-consecutive docket entry. So this majority has “won” in terms of diminishing the impact of the dissent and the public’s access to it. In the interest of justice, one can hope it is only a Pyrrhic victory.
When I was a newer on the bench, a friend asked me, “Now that you’ve been a judge for a few years, do you have any particular advice?” I replied, “Always sit with your back to the wall.”

Smith will likely want to be sure to take his own advice going forward.

He starts off the dissent itself with this rather ominous observation:

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.

Bear in mind, there's an interesting political dynamic here: The two judges in the majority are an Obama appointee (David Guaderrama) and a Trump appointee (Brown — the author of the majority opinion and the object of Smith's scorn). Smith is a Reagan appointee, having been appointed directly to a newly created seat on the 5th Circuit in 1987.

Smith also issues a disclaimer...paired with an added jab at the majority:

In the interest of time, this dissent is, admittedly, disjointed. Usually, in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and readability. But that approach is not reasonably possible here because these two judges have not allowed it.
The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.
* * * * *
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.

Okay, as I said, there's no real way to do Smith's dissent justice, so I'll simply leave the readers with this observation he shares about activist judges — I suspect it's one they'll appreciate:

In 37 years as a federal judge, I’ve served on hundreds of three-judge panels. This is the most blatant exercise of judicial activism that I have ever witnessed.
There’s the old joke: What’s the difference between God and a federal district judge? Answer: God doesn’t think he’s a federal judge. Or a different version of that joke: An angel rushes to the head of the Heavenly Host and says, “We have a problem. God has delusions of grandeur.” The head angel calmly replies, “What makes you say that?” The first angel whispers, “He’s wearing his robe and keeps imagining he’s a federal judge.”
Only this time, it isn’t funny.

There's so much more to digest here (and so little time), but I think I know how I'm going to be spending my Wednesday evening. I invite you to join in the fun if you find this as intriguing and entertaining as I do.

And I can't wait to see what the Supreme Court will end up doing with this one...

Editor's Note: This article was updated post-publication to add the correct link to the dissent.

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