The 5th Circuit redistricting ruling in Texas produced a rare, fiery solo dissent from Judge Jerry E. Smith that calls the majority’s actions improper and accuses a district judge of outrageous conduct, sparking questions about process, access, and judicial activism in a high-stakes fight over maps and voting power.
The panel issued a 2-1 decision rejecting Texas’ newly drawn congressional map and directing the state to use a 2021 legislative map, following a two-week trial in El Paso between the League of United Latin American Citizens and Governor Greg Abbott. The majority produced a 160-page opinion, and Judge Smith, the lone dissenter, appended a 104-page counter that blasts the process and the reasoning behind the injunction. Smith frames his dissent not just as disagreement with the outcome, but as an objection to how the paper trail and timing undercut fair judicial deliberation. He emphasizes that the way the majority handled the opinion diminishes participation and public access to dissenting views.
Smith opens his dissent with a cinematic line: “Fasten your seatbelts. It’s going to be a bumpy night!” and immediately announces, “I dissent from the entirety of Judge Brown’s opinion granting a preliminary injunction.” That tone sets up a sharply worded recounting of events, including his claim that the majority released drafts and scheduled publication while he was traveling to attend a funeral. He insists he was denied a reasonable opportunity to respond and frames that denial as an affront to the collegial deliberative process multi-judge courts depend on.
He adds a Preliminary Statement to dispel any suggestion he slowed the ruling and to highlight what he calls “the pernicious judicial misbehavior of U.S. District Judge Jeffrey Vincent Brown.” Smith says, “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.” He outlines a timeline of the October trial and the panel’s post-trial handling, arguing that the majority’s actions effectively buried his dissent on the docket and reduced its public visibility.
Smith argues judges must be allowed to disagree and participate fully, warning that the majority’s conduct risks setting a precedent where “might makes right.” He notes the majority’s paperwork brings up only the district court opinion in an entry that leaves the dissent inaccessible without opening a separate docket entry. That, he says, allows the majority to “win” by limiting the dissent’s impact, which he hopes will prove to be only a Pyrrhic victory for those seeking to silence contrary views.
The dissent goes beyond procedure and attacks substance, claiming the main winners from the injunction are “George Soros and Gavin Newsom” while the losers are “the People of Texas and the Rule of Law.” Smith points out the curious political mix on the panel: the majority includes an Obama appointee and a Trump appointee, while Smith himself is a Reagan appointee who has served on the 5th Circuit since 1987. He uses those facts to question whether the majority’s posture reflected genuine legal concerns or a different kind of activism.
Smith admits the dissent is “disjointed” because the majority prevented the usual time for careful revision and organization, and he jabs at the majority’s literary style: “If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.” He then imagines a blunt summary the majority could have written — admitting a policy-driven intervention to override legislative judgment — to make his point about judicial overreach and the appearance of stepping into policymaking.
He characterizes the majority’s decision as “the most blatant exercise of judicial activism that I have ever witnessed” in his decades on the bench and punctuates the critique with a pointed joke: “What’s the difference between God and a federal district judge? Answer: God doesn’t think he’s a federal judge.” The joke lands as a bitter observation about judges who appear to act beyond their proper role.
Smith’s dissent intertwines procedural protest with a substantive attack on activist tendencies, and he repeatedly emphasizes the harms of sidelining a dissenting judge. He warns that shrinking access to counterarguments and compressing deliberation threatens the integrity of multi-judge decisionmaking and invites a worse kind of judicial lawmaking. His language and examples make the dissent feel personal as well as institutional, calling attention to how conduct in high-profile cases shapes public confidence in the courts.
The dispute over the redistricting map now sits in a larger legal contest where timing, process, and perception matter as much as statutory and constitutional text. Smith’s long, pointed dissent will certainly be cited in future filings and commentary about judicial process, and the clash it reveals between judges on the same panel highlights how procedural choices can carry political and legal consequences. The procedural complaints and sharp rhetoric make clear this disagreement will not fade quietly, and the next steps in the litigation are likely to be watched closely.
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