We’ve Got the Dissent in the Texas Redistricting Case…and It’s a Doozy – RedState

Those of us who peruse legal decisions for pleasure (or for work) have occasionally witnessed spicy dissents—perhaps even a scathing one or two. I’m not sure I’ve ever seen one like the one written by Judge Jerry E. Smith, a 5th Circuit Court of Appeals judge who was the lone dissenting voice on the three-judge panel that ruled on the Texas redistricting case. As RedState reported, the 2-1 decision:

rejected Texas’ new congressional map and ruled that the state must use a map created by lawmakers 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 Gov. Greg Abbott.

READ MORE: Of course they did: Federal court just gutted GOP’s Texas redistricting plan

The majority decision was issued Tuesday, with a footnote stating that Justice Smith “will file a dissenting opinion.” Its absence in the majority decision is unusual. Now we’re learning a little more about how this all happened, and all I’m going to say is that I would pay good money to be a fly on the wall at the next federal judicial reception/gala in Texas.

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

First of all, when an opinion starts by 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 seat belts. It’s going to be an eventful night!”

I disagree with the entirety of Judge Brown’s opinion granting a preliminary injunction.

Smith provides an opening statement before addressing the dissent itself. This will give you some flavor:

I am attaching this preliminary statement to dispel any suspicion that I am responsible for any delay in issuing the preliminary injunction or that I am or have seen slowing down the decision. I must also highlight the pernicious judicial misconduct 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 seen in a case in which I have been involved.

In short, Judge Brown issued a 160-page opinion without giving me any reasonable opportunity to respond. I will explain the details. Readers can judge for themselves.

Smith then lays out the timeline of events since the October trial on that issue, including his traveling to attend the funeral of a fellow federal judge in the Western District of Texas as the majority abandoned drafts of its opinion on him and said it planned to release it on Tuesday. He then summarizes the irregularity of the majority’s line of conduct:

Judges in multi-judge courts understand the importance of the deliberative process for fair and accurate judicial decision-making. As I argue later in this dissent, justices are paid to disagree as well as find common ground. The majority justices cannot tell one or more dissenting justices that they cannot participate. If the two judges on this panel get away with what they did, it sets a horrible precedent that “might makes right” and the ends justify the means.

The majority might even say, “We don’t need to wait for your dissent and we wouldn’t read it if we did.” » Here, that’s sort of what happened: the district court docket only shows Judge Brown’s opinion; the reader does not have access to this dissent without opening a separate, non-consecutive entry. This majority therefore “won” by reducing the impact of dissent and public access to it. In the interests of justice, one can hope that this is nothing more than a Pyrrhic victory.

When I was new to the bench, a friend asked me, “Now that you’ve been a judge for a few years, do you have any special advice?” I replied: “Always sit with your back to the wall. »

Smith will likely want to make sure to follow his own advice in the future.

He begins the dissent itself with this rather disturbing observation:

According to Justice Brown, the main winners are George Soros and Gavin Newsom. The obvious losers are the people of Texas and the rule of law.

Keep in mind that there is an interesting political dynamic here: the two justices in the majority are one Obama appointee (David Guaderrama) and one 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.

SEE ALSO: ‘This is a district court, not a Denny’s’: 5th Circuit responds to SCOTUS in TdA and Hoo Boy case

Smith also issues a warning… coupled with an additional blow against the majority:

Given the time available, this dissent is admittedly disjointed. Usually, when disagreeing with an opinion of such length, I would spend more days refining and reorganizing the dissent for impact and readability. But that approach is not reasonably possible here because these two judges did not allow it.

The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for fiction, Justice Brown’s opinion would be a prime candidate.

* * * * *

Justice Brown could have saved himself and his readers a great deal of time and effort by simply stating the following:

I just don’t like what the legislature did here. It was unnecessary and seems unfair to disadvantaged voters. I must step in to ensure that wiser heads prevail over the overtly partisan and racist actions of these zealous legislators. Just like I did with Galveston County legislators in PetwayI use my considerable influence as a federal district judge to stop bad political judgments. After all, I’m paid to do what I think is right.

Okay, like I said, there’s no real way to do justice to Smith’s dissent, so I’ll just leave readers with this observation he shares about activist judges – I think it’s an observation they’ll appreciate:

In 37 years as a federal judge, I have served on hundreds of three-judge panels. This is the most egregious exercise in judicial activism 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 this joke: an angel rushes to the head of the Heavenly Host and says: “We have a problem. God has delusions of grandeur.” The chief angel calmly responds: “What makes you say that? The first angel whispers, “He wears his robe and still imagines he is a federal judge. »

But this time, it’s not funny.

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

And I can’t wait to see what the Supreme Court ends up doing with this one…

Editor’s Note: Do you like RedState’s conservative reporting that attacks the radical left and the woke media? Support our work so we can continue to bring you the truth.

Join RedState VIP and use promo code STRUGGLE to benefit from 60% off your VIP subscription!