(The Center Square) – Two federal judges in El Paso ruled this week against a new congressional redistricting law and ordered Texas to use a 2021 redistricting map for the 2026 midterm election.
The ruling excluded the lone dissenting judge’s opinion.
Days later, Circuit Judge Jerry Smith issued his dissent, expressing outrage over the process, alleging the chief judge engaged in “judicial misbehavior” and “outrageous conduct.”
The lawsuit was heard in the U.S. District Court Western District of Texas El Paso Division. Judge Jeffrey Brown wrote the 160-page opinion for the two majority judges who sided with groups arguing the law is discriminatory, The Center Square reported.
On the merits of Brown’s argument, Smith said, “If there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.”
“A federal court cannot reinstate a statute that the legislature has explicitly repealed and voided,” Smith said, referring to the 2021 law, which was repealed by the 2025 law.
Doing so presented “grave federalism concerns, commandeers the state legislature, departs from the standard remedial process in voting rights cases, and intrudes into the ‘sensitive area of state legislative redistricting,’” Smith said, citing Tenth Amendment case law.
“Judge Brown also fails to grapple with the fact that the prior maps have been voided,” Smith said, citing Texas law. Because the new law was already in effect for more than 75 days, he said Brown’s order was “unlawful.”
However, before addressing the legal arguments, Smith said he needed to highlight the “pernicious judicial misbehavior of U.S. District Judge Jeffrey Vincent Brown.”
“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,” Smith wrote in a 104-page dissent.
“In summary, Judge Brown has issued a 160-page opinion without giving me any reasonable opportunity to respond. I will set forth the details. The readers can judge for themselves.”
Smith listed a timeline, beginning with an Oct. 10 nine-day evidentiary hearing/trial on the motion for preliminary injunction, when the majority judges “immediately retired to confer” and voted to grant the preliminary injunction. For 26 days, “there was silence – nary a word from either judge,” Smith said.
On Nov. 5, Brown sent him “a 13-page outline of the expected majority opinion ‘so that you and your chambers might be able to begin preparing your dissenting opinion,’” and heard nothing for a week, Smith said.
In a Nov. 12 message to Smith, Brown said, “We will endeavor to get you a draft before we issue it. Sadly, we do not believe we can wait for a dissenting opinion before we rule. We will, however, note on the opinion that you are dissenting. We are not trying to cut you out, we just don’t have the time. Ideally, of course, we’d have liked to have seen your dissent before we issue our opinion, but that will also be impossible.”
The majority opinion was released three days later without Smith.
“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?
“Judges on multi-judge courts understand how important the deliberative process is to fair and accurate judicial decision making. … judges get paid to disagree as well as to find common ground. Judges in the majority don’t get to tell a dissenting judge or judges that they can’t participate. If the two judges on this panel get away with what they have done, it sets a horrendous precedent that ‘might makes right’ and the end justifies the means.”
Smith also said Brown’s ruling was “the most blatant exercise of judicial activism” he’s witnessed in 37 years.
“Judge 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. … I need to step in to make sure wiser heads prevail … ,” Smith said.
Throughout his dissent, Smith said Brown’s opinion is “caught in an illogical straitjacket from which it cannot escape,” wrong “on multiple levels,” and “If this were a law school exam, the opinion would deserve an ‘F.’”
He also called Brown “an unskilled magician” whose legal arguments were “fanciful framing at best and intentionally deceptive at worst.”
Texas is appealing Brown’s ruling to the U.S. Supreme Court.
The high court has previously vacated El Paso court rulings in which Smith was the lone dissent.
“Here we go again,” Smith said.
