Jerry Smith | |
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| Judge of the United States Court of Appeals for the Fifth Circuit | |
| Assumed office December 21, 1987 | |
| Appointed by | Ronald Reagan |
| Preceded by | Seat established |
| Personal details | |
| Born | Jerry Edwin Smith November 7,1946 |
| Education | Yale University (BA,JD) |
Jerry Edwin Smith (born November 7,1946) is an American lawyer and jurist serving as a United States circuit judge of the United States Court of Appeals for the Fifth Circuit since December 1987.
Smith was born on November 7,1946,in Del Rio,Texas. [1] After high school,he graduated from Yale University with a Bachelor of Arts degree in 1969 and earned a Juris Doctor from Yale Law School in 1972. [2]
Smith clerked for Judge Halbert O. Woodward of the United States District Court for the Northern District of Texas from 1972 to 1973. After his clerkship,he joined the law firm Fulbright &Jaworski (now Norton Rose Fulbright),where he became a partner in 1981. [3]
Smith was Director of the Harris County Housing Authority in Texas from 1978 to 1980. He was a special assistant attorney general of Texas from 1981 to 1982. He was Chairman of the Houston Civil Service Commission from 1982 to 1984. He was a city attorney in Houston from 1984 to 1987. [4]
Smith was nominated by President Ronald Reagan on June 2,1987,to the United States Court of Appeals for the Fifth Circuit,to a new seat created by 98 Stat. 333. He was confirmed by the United States Senate on December 19,1987,and received commission on December 21,1987. [4]
In Corrosion Proof Fittings v. EPA,947 F.2d 1201 (5th Cir. 1991),Smith wrote the panel opinion that required the United States Environmental Protection Agency to use cost-benefit analysis when deciding whether to ban a toxic substance.
Smith was one of three judges on a panel that heard the appeal to Hornbeck Offshore Services LLC v. Salazar ,a case challenging the U.S. Department of the Interior's six-month moratorium on exploratory drilling in deep water that was adopted in the wake of the Deepwater Horizon explosion and the subsequent oil spill. The lower court had struck down the Department of the Interior's moratorium as arbitrary and capricious government action,and the Fifth Circuit panel denied the government's emergency request to stay the lower court's decision pending appeal. [5]
In April 2012,during oral argument in a Fifth Circuit case involving the Patient Protection and Affordable Care Act (ACA),Smith ordered the Department of Justice to provide his panel of three judges with a three-page,single-spaced report explaining President Obama's views on judicial review. Judge Smith's order was prompted by Obama's recent press conference remarks on a case pending before the Supreme Court in which the Court was considering,among other things,whether to strike down the entire ACA as unconstitutional. Obama had said that if the Supreme Court overturned the ACA,it would be "an unprecedented,extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," and that a law that was passed by Congress on an economic issue had not been overturned by the court "going back to the '30s,pre New Deal," remarks that were criticized by many as historically and legally inaccurate. [6] [7] [8] [9] Though Judge Smith's response and order were criticized by some legal scholars and members of the press, [10] Bush administration U.S. Attorney General and former judge Michael Mukasey defended Smith,stating that Obama's remarks had called judicial review "into question",so that "the court has,it seems to me,every obligation to sit up and take notice of Mr. Obama." [11] U.S. Attorney General Eric Holder said that the Justice Department would respond "appropriately" to the judge's request [12] and filed a short response,conceding that the federal courts have the power to strike down laws passed by Congress but citing Supreme Court precedent for the proposition that those laws are presumed constitutional and should only be overturned "sparingly". [8]
In July 2012,Smith authored the majority opinion for the en banc Fifth Circuit in United States v. Kebodeaux,687 F.3d 232 (5th Cir. 2012),holding that,once a former federal convict has fully served his sentence and been unconditionally released from prison,the federal government cannot regulate his purely intrastate conduct merely because he was once convicted of a federal crime. Smith's majority opinion further held that the mere possibility that a person may move interstate in the future is an insufficient basis for the federal government to regulate that person under the Interstate Commerce Clause. [13] The decision was reversed 7–2 by the Supreme Court in United States v. Kebodeaux ,133 S. Ct. 2496 (2013),on the grounds that Kebodeaux himself was not unconditionally released from federal custody,because a law in effect at the time of his offense required him to register as a sex offender after his release from prison. However,a concurring opinion by Chief Justice Roberts agreed with Judge Smith's en banc opinion on the core issue that "[t]he fact of a prior federal conviction,by itself,does not give Congress a freestanding,independent,and perpetual interest in protecting the public from the convict's purely intrastate conduct." [14]
In 2019,Smith wrote the majority opinion in Taylor v. Williams,715 F App'x 332 (5th Cir. 2017). Smith granted qualified immunity to correctional officers for their treatment of a prisoner subjected to six days' seclusion in cells covered in feces,with no water or toilet available,because it "wasn't clearly established" that "prisoners...housed in cells teeming with human waste [for] a time period so short violated the Constitution," holding that the illegality of such actions was not "beyond debatable." [15]
On January 2,2021,Smith,along with Patrick E. Higginbotham and Andrew Oldham,affirmed the dismissal for lack of jurisdiction of a lawsuit filed by Louie Gohmert aimed at empowering Vice President Mike Pence to overturn President-Elect Joseph Biden's Electoral College win. [16] [17]
On February 9,2022,Smith was one of two judges who declined to rule on a request to stay a preliminary injunction against Biden's COVID-19 vaccine mandate for federal employees. [18] Judge Stephen A. Higginson dissented from that ruling,arguing that the government was entitled to an immediate stay while it appealed. [18]
On February 17,Smith dissented when the majority,Jennifer Walker Elrod and Andy Oldham,reversed the district court's order denying a preliminary injunction to employees challenging United Airlines' vaccine mandate. [19] Smith's dissent of nearly 60 pages accused the majority of flouting "fifty years of precedent and centuries of Anglo-American remedies law" and ignoring the text of the relevant statute "to extract its desired result.". [19] He also criticized the majority for hiding its "made-up" legal theory in an unsigned and unpublished opinion. [19] "If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action,without a likelihood of success on the merits (for two reasons),and devoid of irreparable injury,despite the text,policy,and history of the relevant statute,despite the balance of equities and the public interest,and despite decades of contrary precedent from this circuit and the Supreme Court,all while inventing and distorting facts to suit my incoherent reasoning,'I would hide my head in a bag,'" Judge Smith concluded,quoting the late Supreme Court Justice Antonin Scalia. [19] Slate described Smith's dissent as a "60-page burst of fury" and "one of the angriest dissents of his career". [20]
On October 9,2023,Smith dissented from a 5th circuit order upholding a stay of execution. Smith attached a fake majority opinion to his dissent,resembling what he thought the majority opinion should be. [21]
On November 18,2025,Smith filed a 104-page dissent from a three-judge court ruling that invalidated Texas' mid-decade redistricting of the state's congressional map written by Jeff Brown,a Trump appointee,because "[t]he main winners from Judge Brown's opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law." [22] Various sources described it as extraordinary,unusual,a personal attack on Judge Brown,and berserk. [23] [24] [25]
Judge Smith's former clerks include:
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