Judge Jerry Smith Issues His 104-Page Dissent to Yesterday’s 3-Judge District Court Holding that Texas’s Re-Redistricting is Likely an Unconstitutional Racial Gerrymander. Along the Way He Calls Out the “Pernicious” and “Outrageous” Behavior of Judge Brown in the Majority

You can find the dissent at this link.

It begins with a remarkable attack on Judge Brown (a Trump appointee) explaining that Smith was not responsible for any delay in issuing the decision:

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.

And then turning to the merits:

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. I dissent.

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.

I have now had a chance to skim both the majority opinion and the dissent in this case. I don’t feel like I’m already steeped enough in the details to make a confident prediction about who is right on the merits of whether race predominated in drawing these maps.

But I do want to comment on the risky strategy of Judge Smith’s dissent. On the one hand, if the facts are as Judge Smith describes them, then there’s a good case to be made that Judge Brown did not afford Judge Smith a fair opportunity to write a dissent in time that would be responsive to the specific claims of the majority. (Judge Brown saw the press of time because of the Purcell principle—at some point it will be too late to interfere with the adoption of maps.

On the other hand Judge Smith’s opinion is not only dripping with anger, it includes a lot of gratuitous, personal attacks on the experts and lawyers on the plaintiffs’ side of the case. He tars many of them as being “Soros operatives,” as if the person paying services or backing a legal organization is somehow illegitimate because of who funds them. Judge Smith says he is doing so to show this was all about partisanship, rather than race, but I don’t think it shows it at all. Instead, it shows Judge Smith’s disdain for George Soros and Gavin Newsom.

Simply as a matter of strategy, if Judge Smith’s audience is the Supreme Court, I think he would have been far more effective if he had been measured and focused more attention on what he sees as the defects in the merits of the case, rather than to continually cast aspersions on the other judges, experts, and lawyers in the case. Maybe what he says will resonate with some of the Supreme Court justices, but I expect some will be turned off by this ranting.

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