By now, most subscribers to The Texas Lawbook have likely read the 104-page dissenting opinion issued by Fifth Circuit Judge Jerry E. Smith in the litigation over Texas’ newly redrawn congressional maps.
The withering language used by Judge Smith and directed at U.S. District Judge Jeffery V. Brown was spawned at least in part by the decision of Judge Brown and Senior U.S. District Judge David C. Guaderrama to issue the majority opinion before the dissenting judge had “any reasonable opportunity to respond,” as Judge Smith characterized it.
The dissent has reached a broader audience than most filings from judges who disagree with their colleagues and has prompted many social media posts, with even non-lawyers posting their favorite lines.
Pushing aside what’s already been reported — like the number of times Judge Smith wrote that he dissents (16), the number of times he calls out Judge Brown by name (279) and the number of times he references the Soros family (17) — The Lawbook asked more than a dozen appellate lawyers to weigh in on the aftermath: whether the tone of the dissent and the majority’s decision on the timing of the opinion’s release would have an impact on the judiciary, and the public’s opinion of the judiciary, moving forward.
Many lawyers declined to speak on the record, but four of them did.
“Political cases often involve unique timing and procedural limitations,” said appellate specialist Anne Johnson of Tillotson Johnson & Patton. “I have never seen a dissent like Judge Smith’s. It is disheartening to see a direct and personal attack by one member of the judiciary on another.”
That sentiment was echoed by each attorney who spoke to The Lawbook, including the leader of Hicks Johnson’s appellate group, Andrew Gould, who also is the immediate past president of the Federal Bar Association’s Southern District of Texas Chapter.
“As someone who cares deeply about our judicial system, I am concerned that the dissent’s unusually sharp language could unintentionally reinforce broader narratives of hostility toward the judiciary, particularly at a time when judges across the spectrum face heightened security risks,” he said.
While “Judge Smith had legitimate reason to be upset about the timing of the majority opinion’s release” Gould said, the “personal tone ultimately distracted from the dissent’s substantive legal points.”
Judge Smith’s dissent includes several attacks on Judge Brown that appear personal in nature.
Many lawyers who spoke to The Lawbook invoked a famous quote from the late U.S. Supreme Court Justice Antonin Scalia, who was known for his sharp critiques.
“I attack ideas, I don’t attack people,” Justice Scalia said.
Chris Kratovil of Dykema, who was a clerk for Fifth Circuit Judge Edith H. Jones, said part of the reason why Justice Scalia focused his attacks on ideas was to avoid the public perception that the judiciary is partisan.
“That remains a worthy goal and a worthy ideal,” he said. “Empty the shotgun into a bad idea or bad opinion … but not the people who write the opinion.”
Dallas appellate lawyer Chad Ruback said the state appellate justice he clerked for “prided herself on writing more dissents than all of the other judges on the court combined.”
“She took great care to point out errors in other judges’ analysis but to never disparage the judges themselves — or to disparage the lawyers, parties or witnesses in the case,” he said. “Thankfully, my judge’s practices in writing dissents is common among the judiciary. On the other hand, Judge Smith’s dissent does not just attack Judge Brown’s legal reasoning. It attacks Judge Brown personally — accusing Judge Brown of ‘outrageous conduct.’”
“Frankly, I think Judge Smith’s dissent does little more than cast the judiciary in an unfavorable light,” Ruback said. “The dissent makes some legitimate points about why the majority opinion may have been wrong. But any such points in the dissent are overshadowed by its vitriol and personal attacks.”
The public and personal nature of Judge Smith’s comments about Judge Brown also raise questions about whether he will be asked to recuse himself from hearing cases in the Fifth Circuit that originate in Judge Brown’s Galveston courtroom.
While lawyers seemed to agree the dissent doesn’t create a mandatory recusal as a result of the dissent, there is now ammunition for litigants who seek Judge Smith’s discretionary recusal from cases originating in Judge Brown’s court.
“Some tension, and perhaps, bad blood, is not a mandatory basis for recusal,” Kratovil said. “I would anticipate some future litigant will bring a motion to recuse using this 104-page dissent and some of the pointed criticism it levels at Judge Brown as a basis for that motion to recuse.”
“But it’s pretty tough to get a federal judge recused.”
With the case having already been appealed to the U.S. Supreme Court, lawyers differed in their opinions on whether the high court might address this dissent and the timing of the release of the majority opinion, should the court take the case and write on it. But if it is addressed, Chief Justice John Roberts, who has advocated for more collegiality and civility in the courts, is the betting favorite to offer any remarks on the matter, lawyers who spoke to The Lawbook said.
“I’m sure that the Supreme Court in general, and Chief Justice Roberts in particular, is not thrilled to be getting this case in this posture,” Kratovil said. “… I’m sure the entire court wishes it came up in a less dramatic posture.”