There is so much to say about LULAC v. Abbott, the recent gerrymandering case decided by a three judge panel of the Western District of Texas. Indeed, it has taken me a few days to process everything.
First, this three-judge panel was constituted back in 2021. Due to long-running litigation over Texas's 2021 maps, this panel maintained jurisdiction over the new 2025 maps. The plaintiffs chose to file in the Western District of Texas, El Paso Division, where they were virtually assured of not drawing a conservative judge. And they drew Judge David Guaderrama, an Obama nominee. Then-Chief Judge Priscilla (Owen) Richman, not the current Chief Judge, Jennifer Walker Elrod, appointed the other two members of the panel: District Judge Jeffrey Brown and Circuit Judge Jerry Smith.
Second, virtually every press story about the case has highlighted the fact that Judge Brown was appointed by President Trump. Indeed, Trump nominated Brown to fill a single-judge division on Galveston Island, just outside of Houston. But unlike some of the other judges appointed to single-judge divisions, Brown did not become a go-to forum for strategic litigation during the Biden years. Quite to the contrary, he put up a "Do Not Enter" sign on his courtroom. In 2023, Judge Brown adopted a local rule that required the plaintiffs to demonstrate an "obvious factual nexus to the Galveston Division." In the wake of this order, conservative litigants got the memo loud and clear, and stopped filing there. And Brown's rulings have not always fared well before the Fifth Circuit. His VRA ruling in Petteway v. Galveston County was reversed by the en banc court.
Third, in recent months, several Reagan-appointed judges have come forward as purportedly principled jurists who see Trump as a threat to the rule of law. As I've explained, many of these judges are from Massachusetts, and received blue slips from Senators Kennedy and Kerry. I doubt they were ever very conservative. By contrast, Judge Jerry Smith of the Fifth Circuit is a Reagan appointee to the Fifth Circuit whose conservative bona fides are beyond reproach. He has been on the bench for nearly forty years, and is held in very high regard by Fifth Circuit practitioners. I have seen some suggestions that his dissent in LULAC was an effort to curry favor with Trump. Judge Smith is 79 years old. I do not think he is auditioning for a promotion.
Fourth, I have some thoughts about the preliminary statement to Judge Smith's dissent. I always try to avoid imputing bad faith to those I disagree with. I am a fan of Hanlon's Razor: "Never attribute to malice that which is adequately explained by stupidity." If Judge Brown did exactly as Judge Smith alleged, then the lone judge in Galveston, at best, made a colossal error in judgment. Judge Brown was so concerned about getting an opinion out quickly to avoid a Purcell problem that he cut a member of the panel out of the drafting process. What makes this error even more shocking is that Brown previously served on the Fourteenth Court of Appeals and later the Texas Supreme Court. (Justice Scalia swore in Justice Brown at his investiture in 2013, which I attended.) Judge Brown knows how multi-member appellate courts operate.
Fifth, if this case was urgent as Judge Brown insisted, then it does not seem he approached the drafting process with the requisite sense of urgency. The preliminary injunction hearing concluded on October 10. About forty days later, on November 18, he issued a 160-page opinion. Everyone knew this case was bound for the Supreme Court. If Judge Brown was so concerned about Purcell, he could have issued a far slimmer opinion before the candidate registration began on November 8. Indeed, if he was unwilling to wait for Judge Smith's dissent, the majority could have moved even faster.
However, according to Judge Smith's stated chronology, Judge Brown did not move quickly. Between October 10 and November 5, Judge Smith relates there "there was silence." I can relay that I saw Judge Brown at the U.S. Supreme Court on November 4. Judge Brown was there to attend oral argument in The Hain Celestial Group v. Palmquist, a case in which the Fifth Circuit reversed him. I chatted with Judge Brown briefly after the case finished. Also in attendance was Sixth Circuit Judge David McKeague who wrote the dissent in Coney Island, which was also argued that day. As longtime readers might observe, I have this uncanny tendency to be at the right place at the right time. However, I did not see Judge Brown at the Federalist Society Convention, which started two days later. I've checked Judge Brown's civil docket, and there were other entries added during this time. If LULAC was truly a DEFCON 1 case, then these other activities could have taken a break.
Moreover, according to Judge Smith, Brown did not keep to his own self-imposed deadlines. On November 5, Smith received a thirteen-page outline. Then silence for a week. On November 12, Brown announced he would issue the injunction three days later on November 15. At that point, Smith had not even seen a draft. The first draft would be circulated on November 13. On November 16, a new draft with "substantial revisions" was circulated. The plan was to issue it two days later on November 18. Had Judge Brown waited twenty-four hours further, Judge Smith's dissent would have been ready. All of this mess could have been avoided.
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