Senior Circuit Judge Jerry Smith delivered a scorching takedown of a fellow federal judge on Wednesday, accusing his colleague of “unrestrained ideological judicial zeal” in a ruling this week that struck down Texas’s new congressional map.
Judge Smith also accused Judge Brown of “pernicious judicial misbehavior” in rushing a flawed majority opinion out the door without giving Judge Smith a chance to have his dissent come out at the same time.
A clearly peeved Judge Smith wrote “I dissent” at least 16 times in his 104-page opinion, all while tossing increasing levels of vitriol at Judge Brown, both for how he handled the procedures of the ruling and for his legal reasoning itself.
He said Judge Brown deserved the “Nobel Prize for fiction,” if such an award existed.
“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,” he wrote.
He accused Judge Brown of doing the bidding of billionaire liberal financier George Soros in striking down Texas’s map, because Soros-funded entities and people supplied the legal and academic heft for the map’s challengers.
Judge Brown, a Trump appointee to a district court in Texas, was part of the three-judge panel assigned to hear the case challenging Texas’ new map. He was joined in the majority by Senior District Judge David Guaderrama, an Obama appointee.
They concluded that Texas redrew its maps less to gain partisan advantage and more because of a desire to strip racial and ethnic minorities’ voting power. That, the majority said, violated the Voting Rights Act.
Judge Smith found that conclusion an “absurdity.”
“Because the ‘obvious reason’ for the 2025 redistricting ‘of course, is partisan gain,’ Judge Brown commits grave error in concluding that the Texas legislature is more bigoted than political,” Judge Smith wrote.
The withering dissent was likely aimed not just at Judge Brown but also at the Supreme Court, which Texas has asked to step in and block the lower court ruling.
Judge Smith said Judge Brown got the facts, the law, the resolution, the tone and the procedure wrong.
Among his many jabs:
• “If this were a law school exam, the opinion would deserve an ‘F.’”
• “Judge Brown’s analysis exposes either a naivete that is unbefitting of the judiciary or a willful blindness unbecoming of the judiciary.”
• “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.”
• “Judge Brown has a lingering habit. He correctly recites part of a legal principle, then veers off track along a spectrum — intentionally misleading at best to false at worst.”
• “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.”
Texas Gov. Greg Abbott asked his legislature to draw new lines this summer after the federal Justice Department told the state that a handful of its districts might now be considered illegal racial gerrymanders, based on recent Supreme Court rumination.
The legislature drew a new map that could slash Democrats from 15 of the state’s 38 U.S. House seats to 8, or 21%, in a state where then-Vice President Kamala Harris won 42% of the vote last year.
But Judge Brown said the new map was an illegal racial gerrymander by eliminating the majority-minority districts.
“By all current appearances, there was no past discrimination in favor of minority coalitions for the state to remedy — and, therefore, no ‘strong basis in evidence’ to support the state’s purposeful and predominant consideration of race in the 2025 redistricting process,” the judge wrote in a 160-page opinion.
Judge Smith said the three-judge panel finished hearing a trial on the matter on Oct. 10, and the panel voted on the outcome. It was going to be a 2-1 decision.
He said he then waited to get the majority opinion so he could write his dissent. And he didn’t hear anything until Nov. 5, when he got a 13-page outline. A week later he was told the opinion would be issued Nov. 15 — but he still didn’t get a draft until a day later.
The majority ended up issuing the opinion on Tuesday, after Judge Brown told Judge Smith they wouldn’t wait. Judge Brown said he didn’t want to violate the Purcell principle, which cautions against changing election rules too close to a contest.
“The fuse is simply too short,” Judge Brown wrote to Judge Smith.
“This outrage speaks for itself. Any pretense of judicial restraint, good faith, or trust by these two judges is gone,” Judge Smith replied. “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?”