Épées out -- Dissenting judge torches colleague for ‘judicial misbehavior’ in blocking Texas map
by Zach Schonfeld - 11/19/25 4:49 PM ET
The federal judge who dissented from the order striking down Texas’s new Republican-friendly House map torched his colleague in an explosive opinion published Wednesday, accusing him of “pernicious judicial misbehavior.”
“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,” wrote U.S. Circuit Judge Jerry Smith.
His 104-page dissent was unusually published a day after his colleague released the court’s opinion invalidating Texas’s new House map as a likely racial gerrymander. The map could have added up to five GOP pickup opportunities for the midterms.
Smith explained the delay was because U.S. District Judge Jeffrey Brown, the majority opinion author, refused to wait for Smith to finish. He has since raced to complete his dissent, but its impact is now diminished, Smith said.
“The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate,” he wrote.
Smith was appointed to the federal bench by then-President Reagan, while Brown was appointed by President Trump.
Smith included some of the panel’s internal correspondence in his dissent, saying his colleague hadn’t given “any reasonable opportunity to respond.”
The messages show Brown sent an outline of the majority opinion two weeks ago and did not provide a complete draft until this past Thursday. Smith wrote that he was out of town for a judge’s funeral, worked on it during the weekend, but needed more time.
“I’ve attached a final version,” Brown wrote Tuesday morning. “We still intend to issue it today. I’m sorry that we can’t wait on your dissent.”
He invoked the Purcell principle, the doctrine that courts should not change voting maps too close to an election.
“Purcell compels us to get the ruling out as soon as we possibly can. It turns out that’s today,” Brown wrote.
The opinion was issued minutes later.
Smith’s dissent went on to relentlessly attack his colleague, calling Brown at turns “a legislator/activist jurist” and “an unskilled magician” who “prefers living in fantasyland” in his “crusade” against Texas Republicans.
Smith said he’d give the opinion an “F” if it were a law school exam and called Brown an “easy grader” in deeming the challengers’ witnesses credible.
“But ideological zeal sometimes overrides common sense,” Smith wrote.
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