When the majority of a three-judge panel led by a Trump appointee blocked Texas’ congressional maps on Tuesday, a footnote to Judge Jeffrey Brown’s 160-page opinion said that the judge who disagreed with the majority, Jerry Smith, “will file a dissenting opinion.” That 104-page dissent came Wednesday, and it began with Smith warning readers with a movie quote: “Fasten your seatbelts. It’s going to be a bumpy night!”
Perhaps that was a sign that what would follow would be unusual. In retrospect, it managed to undersell things.
Indeed, Smith proceeded with a “preliminary statement” that he wrote 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,” referring to the Trump appointee-turned-antagonist in Smith’s dissent.
Smith, a Reagan appointee, wrote that in his four decades on the bench, “this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.” He then laid out a timeline that showed how Brown issued the ruling without giving Smith “any reasonable opportunity to respond” before its issuance.
At this very early point in Smith’s dissent, a sympathetic reader might feel for the jurist who, at least by his own telling, was stifled from simply doing his job.
But the judge kicks off the next 100 pages by proclaiming that the “main winners from Judge Brown’s opinion are George Soros and Gavin Newsom,” referring to the progressive philanthropist who has long been a bogeyman of the right and California’s Democratic governor, respectively. “The obvious losers are the People of Texas and the Rule of Law,” Smith wrote.
In his admittedly “disjointed” opinion, Soros’ name would appear more than a dozen times in ways that would look more familiar in dark corners of the internet — or, at best, on right-wing television or podcasts — than in the pages of a judicial opinion, such as the judge’s reference to an expert in the case as a “paid Soros operative” who “expects to receive $2.5 million in his Soros piggybank.”
So, what about the law, the thing that the case is actually about, as Texas appeals to the Supreme Court?
Perhaps mindful that his words will be taken as he writes them, Smith drops a footnote to offer that he supposes “someone will say that in making these comments about the Soros connections, I’m expressing a political view, not the proper role of a federal judge.” But to a reader who would rush to that judgment, Smith explains that it’s “not ‘political’ for me to point that out by describing the political dynamics that are inherent in the litigation of redistricting cases.”
Got it.
So, what about the law, the thing that the case is actually about, as Texas appeals to the Supreme Court?
Smith touches on that, too, in between calling Brown an “unskilled magician” whose legal analysis “exposes either a naivete that is unbefitting of the judiciary or a willful blindness unbecoming of the judiciary.” The Reagan appointee closed his opinion with a “non-exhaustive list of misleading, deceptive, or false statements” from the Trump appointee in the majority, while noting that the list “would be considerably longer but for the press of time; there’s no lack of fodder.” Once the smoke clears from the recriminations and the bluster and whatever else one might say about the style of Smith’s dissent, the legal disagreement might be boiled down to the following. The gist of Brown’s majority opinion is that the Texas map in question didn’t merely seek partisan advantage (which the Supreme Court has basically said is fine) but more likely represents an unlawful racial gerrymander. As Smith sees it: “This is about partisan politics, plain and simple.” Smith wrote that Brown “rushes” to rule against the Texas map before the Supreme Court has issued its decision in a crucial pending redistricting case from Louisiana, called Callais. “It is reckless for this court to proceed with opining on the merits, which amounts to nothing more than a general guess as to whether existing voting-rights jurisprudence will survive Callais,” the Reagan appointee wrote. True, the high court’s forthcoming ruling in Callais is poised to have a significant effect on the future of voting rights in this country. And the Supreme Court will have a chance to decide which of the two GOP appointees has the better of the argument here. Whether Smith’s styling of his dissent helps or hurts his side we may never know, but it might appeal to some justices more than others. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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