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A federal judge in Texas responded to the court’s decision to scrap the state’s redrawn map with a jaw-dropping dissent on Wednesday in which he lobbed dozens of insults at his colleague and repeatedly invoked Democratic mega-donor George Soros.
“This is the most blatant exercise of judicial activism that I have ever witnessed,” Judge Jerry Smith, a Reagan-appointee on the U.S. Court of Appeals for the 5th Circuit, wrote of the 2-1 decision to toss out the map.
In the turbulent 104-page tirade, he named the majority opinion’s author, U.S. District Judge Jeffrey Brown, a Trump appointee, hundreds of times, accusing him of “pernicious judicial misbehavior.”
The majority opinion would be a “prime candidate” for a “Nobel Prize for Fiction,” Smith said.
“The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom,” Smith said. “The obvious losers are the People of Texas and the Rule of Law.”
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Texas Gov. Greg Abbott has turned to the Supreme Court for relief in the state’s redistricting fight. (Brandon Bell/Getty Images)
Smith, a Yale Law School graduate, wrote that “if this were a law school exam, the opinion would deserve an ‘F.’”
Smith’s dissent came as part of a three-judge panel’s decision in the U.S. District Court for the Western District of Texas to temporarily block the state from using its map in the 2026 midterms. The map had created five new Republican-leaning districts, which the majority said was a product of unconstitutional racial gerrymandering. Republican Gov. Greg Abbott has already turned to the Supreme Court for relief.
Just as striking as the dissent itself, which Smith conceded was “disjointed,” was that the two judges in the majority did not wait for it, issuing their decision on Tuesday and leaving Smith’s dissent to land on the docket a day later.
“Any pretense of judicial restraint, good faith, or trust by these two judges is gone,” Smith wrote. “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?”
Brown was joined in the 2-1 opinion by U.S. District Judge David Guaderrama, an Obama appointee.
The U.S. and Texas flags wave outside the Texas Capitol on July 13, 2021, in Austin, Texas. (Montinique Monroe/Getty Images)
Smith’s broadside focused on Brown, saying that, “true to form,” he preferred to “live in a fantasyland” and had engaged in “judicial tinkering.”
The Supreme Court is now under pressure to act quickly on what has become a pivotal election issue that could shape the outcome of next year’s midterms. Texas requires candidates to declare their candidacy by Dec. 8.
The high court is already considering a similar Voting Rights Act case that originated in Louisiana. The justices heard oral arguments in the case last month and are expected to address the race provision of the law, which is relevant in the Texas case, on a normal timeline during this term.
Brown’s majority opinion in Texas had opened with a quote from Chief Justice John Roberts, who said in an unrelated case, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
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U.S. Supreme Court Chief Justice John Roberts attends inauguration ceremonies in the Rotunda of the U.S. Capitol on Jan. 20, 2025, in Washington, D.C. (Chip Somodevilla/Pool via Reuters/File Photo)
“Substantial evidence shows that Texas racially gerrymandered the 2025 Map,” Brown wrote.
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Brown said Department of Justice Civil Rights Division head Harmeet Dhillon’s warning to Texas this year to address four districts with non-White majorities because they were “coalition” districts was a race-based directive as evidenced by Dhillon ignoring all other Democrat-leaning districts that had White majorities. Abbott had responded to Dhillon by adding redistricting to the legislative agenda in a rush, leading to a stunning protest involving Democratic state lawmakers fleeing the state earlier this year.
“The Governor explicitly directed the Legislature to redistrict based on race,” Brown found.
