On Tuesday, the media was filled with stories that a three-judge panel had voted 2-1 to issue a 160-page order blocking the Texas legislature’s new congressional redistricting plan. 

The order claimed the redistricting was unlawfully based on race as opposed to partisanship—a claim at odds with what we all saw happen in the partisan political fight within the state legislature, which included a walkout by Democrat legislators. 

What wasn’t attached to the order was the dissenting opinion by Fifth Circuit Court of Appeals Judge Jerry Smith, a 37-year veteran of the federal judiciary who is greatly respected for his legal acumen.  His 104-page dissent came out a day later and marks the most scathing denunciation I have ever read of another judge.

In this case, the judge being denounced is Judge Jeffrey Vincent Brown, who wrote the majority decision, along with Judge David Guaderrama, who joined the opinion.

In his dissent, Smith accused Brown and Guaderrama of “pernicious judicial misbehavior” in deliberately not providing Smith with “any reasonable opportunity” to review Brown’s opinion “and respond” before it was issued. Smith calls it “the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.”  He spends four pages going through the timing involved and says that “any pretense of judicial restraint, good faith or trust by these two judges is gone.”

Smith then starts off the substance of his dissenting opinion by acknowledging an undeniable fact: “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.” 

Smith proceeds to totally dismantle the majority’s decision and its unsubstantiated claim that race, not politics, was the driving factor in the redistricting. Throughout,  he repeats the phrase “I dissent” more than a dozen times.

Smith even includes two pages of “a non-exhaustive list of misleading, deceptive, or false statements Judge Brown put forward,” a very serious charge against a sitting judge Smith says the list “would be considerably longer but for the press of time; there’s no lack of fodder.”

Smith apologizes for his dissent being “disjointed,” but says refining it was not possible because Brown and Guaderrama “have not allowed it.”  Thus, his dissent is “far from a literary masterpiece,” but if “there were a Noble Prize for Fiction, Judge Brown’s opinion would be a prime candidate.”

According to Smith, Brown’s opinion is so deceptive and so lacking in facts or law that 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…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.

Brown’s actions are, Smith wrote, “the most blatant exercise of judicial activism” that he has “ever witnessed” during his lengthy judicial career.

According to Smith, the main question before the three-judge panel was “whether the Texas Legislature did its mid-decade congressional redistricting to gain political advantage or, instead, because the main goal of Texas’s Republican legislators is to slash the voting rights of persons of color.”

Smith likened the approach of the lawyers and witnesses in this case to that of Department of Justice lawyers from the Civil Rights Division in prior Texas redistricting cases:

It was obvious, from the start, that the DoJ attorneys viewed state officials and the legislative majority and their staffs as a bunch of backwoods hayseed bigots who bemoan the abolition of the poll tax and pine for the days of literacy tests and lynchings.  And the DoJ layers saw themselves as an expeditionary landing party arriving here, just in time, to rescue the state from oppression.

Having worked in the Civil Rights Division, I can assure you that his observation is absolutely 100% accurate.

While acknowledging that the Justice Department was not present in this case, Smith said that “the same attitudes about Texas Republican legislators have been reflected in the testimony of multiple experts and witnesses presented by these plaintiffs and, occasionally…by their talented counsel and the statements of the parties.”  But the “obvious reason” for the Texas redistricting, Smith wrote, was “partisan gain.” The majority, he wrote, “commits grave error in concluding that the Texas Legislature is more bigoted than political.” 

Smith methodically points out all of the grave errors Brown and Guaderrama made in evaluating the evidence in the case over what the legislators did and how and why the new districts were drawn the way they were.  Those errors are too numerous to list here.

Smith’s conclusion that the majority committed “grave error” is the key legal standard for overturning a preliminary order. Texas has already filed an appeal with the Supreme Court. 

Smith says the evidence in the case, as well as outside events, like the “victory lap in Houston to celebrate” by California Gov. Gavin Newsom, tell “you all you need to know – this is about partisan politics, plain and simple.”  Regardless “of one’s political slant, it’s obvious what Texas is trying to do in 2025,” obvious to everyone that is except the two judges who joined the majority opinion:

The Republicans’ national margin in the House of Representatives is so slim that squeezing out a majority might even depend, day-to-day, on whether some seats are vacant because of deaths or resignations….The new plan [in Texas] was to make more seats winnable for Republicans by moving some Democrat incumbents from their districts and rendering other districts unwinnable by Democrats.

Smith describes the plaintiffs’ theory—the one ultimately adopted by Brown—as “both perverse and bizarre.” They claimed that if politics was the reason for redistricting, then the Republicans would not “have drawn five” new seats, but instead would have drawn “six, seven, or eight additional seats and that the reason they did not is that the real reason” for the redistricting was “racial animus.”  The “absurdity of that notion speaks for itself,” Smith writes.

Smith concludes his dissent by citing the unfairness the majority is imposing on “Texas voters who are having a map implemented by their duly elected legislature overturned by a self-aggrandizing, results-oriented court.”  He tells the Supreme Court that Brown’s order, “replete with legal and factual error, accompanied by naked procedural abuse, demands reversal.”

With this decision, Smith writes, “darkness descends on the rule of law.”

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