Judge
Jerry
Smith
has
a
flare
for
off-the-hook
opinions.
He
once
dissented
by
writing
a
fake
majority
opinion
—
styled
to
look
like
a
majority
opinion
—
that
he
claimed
the
majority
should
have
written.
Good
luck
to
the
AI
bots
scraping
that
one
and
trying
to
figure
out
what
the
law
actually
is!
He
also
spit
hot
fire
for
50-some-odd
pages
against
conservative
colleagues
second-guessing
an
airline’s
vaccine
policy,
dragging
the
majority’s
attempt
to
graft
a
culture
war
exception
on
the
concept
of
at-will
employment.
Right
or
wrong,
Judge
Smith
carries
terminal
“main
character
syndrome”
into
everything
he
does.
And
he
has
not
disappointed
with
his
104-page
dissent
in
the
Texas
redistricting
case.
Arriving
a
little
later
than
the
majority
opinion
putting
a
block
on
the
new
Texas
maps,
Judge
Smith
warns
us
to
buckle
in
Smith
opens
with
a
“Preliminary
Statement,”
fixing
his
ire
on
Trump-appointed
Judge
Jeffrey
Brown,
a
deeply
conservative
former
Texas
Supreme
Court
justice:
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.
The
next
several
pages
only
succeed
in
painting
Judge
Brown
as
entirely
reasonable.
If
anything,
Judge
Brown
is
bending
over
backward
for
a
dissenting
judge
who
wants
to
dawdle
in
the
face
of
Purcell‘s
ticking
time
bomb.
The
majority
provided
Judge
Smith
with
an
outline
13
days
before
publishing
the
majority
opinion,
and
a
draft
five
days
before.
A
tight
timeline,
but
not
an
absurd
one
for
a
case
of
national
import.
Judge
Brown
even
informed
Judge
Smith
that
the
majority
would
note
that
a
dissenting
opinion
would
be
forthcoming
—
allowing
the
parties
to
begin
the
inevitable
appeals
process
as
quickly
as
possible.
This
outrage
speaks
for
itself.
Any
pretense
of
judicial
restraint,
good
faith,
or
trust
by
these
two
judges
is
gone.
If
these
judges
were
so
sure
of
their
result,
they
would
not
have
been
so
unfairly
eager
to
issue
the
opinion
sans
my
dissent,
or
they
could
have
waited
for
the
dissent
in
order
to
join
issue
with
it.
What
indeed
are
they
afraid
of?
Purcell.
They
were
afraid
of
violating
Purcell.
Under
the
Purcell
principle,
courts
are
admonished
not
to
settle
election
law
issues
sufficiently
prior
to
an
election
to
avoid
confusing
voters
or
otherwise
influencing
the
outcome.
The
deadline
to
file
to
run
for
the
offices
implicated
by
the
Texas
redistricting
plan
is
December
8.
Judge
Smith
includes
a
joke
in
the
opinion
about
district
judges
thinking
they’re
gods,
in
a
true
“every
accusation
is
an
admission”
moment.
His
dissent
is
strictly
gratuitous.
Beyond
personal
ego,
it
serves
no
purpose
in
the
resolution
of
the
case.
If
Judge
Smith
thinks
this
decision
is
so
bad,
he
should
want
to
see
the
appeals
process
begin
swiftly.
But…
if
someone
slow-walked
the
process
enough,
maybe
the
2026
election
could
be
ordered
to
follow
these
maps,
even
if
they’re
ultimately
determined
to
be
illegal.
Not
that
Smith
would
have
any
political
motivations…
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.
That’s
the
first
line
of
the
dissent
proper,
and
George
Soros
will
be
mentioned
a
total
of
17
times
in
this
case
that
has
nothing
to
do
with
George
Soros.
The
oral
history
of
this
footnote
would
make
for
some
entertainment.
This
is
pure
speculation,
but
this
feels
like
a
note
born
of
some
clerk
saying
“hey
Judge,
you
keep
mentioning
George
Soros
for
no
reason.
Kind
of
makes
you
seem
like
a
crank
peddling
antisemitic
conspiracy
theories.
Maybe
you
want
to
just
drop
all
these
references”
and
Smith
going
“no,
I’ll
go
one
better!”
and
composing
this
footnote.
He
continues
by
charting
connections
that
lawyers
and
experts
in
the
case
have
had
with
other
Soros
initiatives
in
a
real
six-degrees-of-the-Elders-of-Zion
way.
For
example,
Judge
Smith
writes
of
one
expert
witness,
“Matt
Barreto,
whose
testimony
is
so
problematic
that
it
is
unusable.”
Smith
has
no
response
to
Barreto,
but
instead
launches
a
footnote
that
begins
“Plaintiffs’
top
expert
Matt
Barreto
is
a
Soros
operative.”
Pepe
Silvia
all
the
way
down.
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.
Ideally,
you
don’t
want
your
fake
straw
argument
to
be
objectively
accurate.
The
“unfair
to
disadvantaged
voters”
part
is
kinda
the
whole
point
of
the
Voting
Rights
Act.
For
most
of
the
opinion,
Smith
tries
to
characterize
the
case
as
purely
partisan
redistricting
—
which
is
constitutional
—
as
opposed
to
discriminating
against
historically
disadvantaged
groups,
which
is,
at
least
technically,
not.
But
here
he
gives
up
the
game,
unable
to
resist
blasting
Judge
Brown
for
the
audacity
of
applying
the
law
as
written.
And,
in
Smith’s
defense,
the
Fifth
Circuit
and
Supreme
Court
have
certainly
expressed
hostility
to
the
law
as
written.
Judge
Brown
just
seems
to
be
more
of
a
committed
textualist.
Substantively,
the
dissent
constantly
repeats
generic
maxims
as
talismans
against
the
specific
facts.
“The
most
obvious
reason
for
mid-cycle
redistricting,
of
course,
is
partisan
gain,”
the
dissent
repeats,
citing
the
obvious
—
no
one
tries
to
redistrict
to
their
partisan
detriment
—
without
addressing
the
relevant
legal
question
of
whether
or
not
that
the
legislature
got
those
partisan
gains
through
racial
discrimination.
Not
to
get
all
“basic
LSAT
prep”
on
the
judge,
but
having
a
partisan
goal
doesn’t
establish
that
the
gerrymander
is
purely
partisan.
“[T]he
presumption
of
legislative
good
faith,”
carries
oceans
of
water
for
Smith
as
he
brushes
off
explicit
statements
about
the
racial
distribution
of
the
new
maps
from
their
legislative
architects.
But
it’s
not
an
irrefutable
presumption.
Just
because
a
legislature
is
presumed
to
act
in
good
faith,
the
facts
of
this
case
are
that
Texas
didn’t
want
to
redistrict
and
only
agreed
to
do
so
after
a
Justice
Department
official
explicitly
told
them
to
break
up
minority-majority
districts.
“[C]ourts
must
be
careful
not
to
‘overemphasiz[e]
statements
from
individual
legislators,’”
he
warns
in
an
effort
to
ward
off
the
majority
considering
any
statements
from
individual
legislators.
At
one
point,
Judge
Smith
writes,
“Judge
Brown
is
an
unskilled
magician.
The
audience
knows
what
is
coming
next.”
But
it’s
Smith
who
keeps
demanding
the
audience
ignore
what’s
going
on
behind
the
curtain.
The
magician
crack
is
one
of
several
random
acts
of
snarkery
strewn
throughout
the
opinion.
“If
this
were
a
law
school
exam,
the
opinion
would
deserve
an
‘F’”
and
“Confused
yet?
You
can
thank
Judge
Brown
for
that.”
Judge
Smith,
a
Reagan-appointee,
also
repeatedly
—
and
without
noting
it
—
invokes
Reagan’s
1984
debate
with
Walter
Mondale,
playing
both
roles
at
various
points.
We
certainly
appreciate
biting
commentary
and
referential
humor,
but
it’s
not
a
substitute
for
substance.
Smith’s
only
semblance
of
that
stems
from
his
lengthy
recitation
of
the
GOP
mapmaker’s
account
of
the
process.
Evidence
to
the
contrary
gets
waved
off,
often
with
“something
something
George
Soros.”
Then,
returning
to
Purcell,
Judge
Smith
offers
the
most
galaxy-brained
take
of
all:
if
the
legislature
isn’t
allowed
to
racially
gerrymander,
then
there
can’t
be
elections
at
all!
A
federal
court
cannot
reinstate
a
statute
that
the
legislature
has
explicitly
repealed
and
voided.
That
move
presents
grave
federalism
concerns,
commandeers
the
state
legislature,
departs
from
the
standard
remedial
process
in
voting
rights
cases,
and
intrudes
into
the
‘sensitive
area
of
state
legislative
redistricting.’
Quite
the
hack!
His
argument
is
that,
given
the
2025
redistricting
bill
explicitly
repealed
the
prior
2021
maps,
any
opinion
invalidating
the
2025
maps
cannot
return
the
parties
to
the
old
maps,
leaving
Texas
with
no
maps
at
all
for
the
rapidly
upcoming
election.
So
all
a
legislature
would
need
to
do
to
impose
an
illegal
map
is
explicitly
repeal
the
last
one
and
engage
the
courts
in
a
murder-suicide
pact?
That’s
a
special
kind
of
stupid.
And
then
it
gets
worse:
Also,
Judge
Brown’s
chosen
remedy
engenders
an
interesting
contradiction:
The
plaintiffs
have
insisted,
for
years,
that
the
2021
maps
are
themselves
racist
and
unconstitutional.
While
Judge
Brown’s
opinion
[is
—
sic]
exactly
what
they
asked
for,
it
is
manifestly
absurd
for
them
to
mandate
an
unconstitutional
set
of
2021
maps!
Democrats
thought
the
old
maps
were
racist…
so
how
can
they
complain
just
because
these
maps
are
more
racist?
OK,
I’m
starting
to
understand
why
Smith
thought
he
needed
a
lot
more
time
to
think
through
this
opinion
before
committing
it
to
paper.
The
opinion
raises
the
specter
of
the
legislature’s
being
incentivized
to
redistrict
“as
close
to
elections
as
possible.”
This
is,
apparently,
not
meant
ironically.
His
argument
is
that
if
courts
can
halt
last-minute
election
interference
it
just
means
legislators
engage
in
last-last-minute
interference.
Probably
true,
but
is
like
saying,
“if
we
prosecute
murderers,
they’ll
be
incentivized
to
try
to
hide
their
crimes.”
Smith
kicked
off
his
dissent
promising
a
bumpy
night,
so
you
can’t
accuse
him
of
failing
to
pay
off
on
his
headline.
But
like
Margo
Channing
in
All
About
Eve,
it’s
hard
to
separate
this
opinion
from
an
aging
star
desperately
clinging
to
the
spotlight.
(Check
out
the
whole
opinion
on
the
next
page…)
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
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Follow
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