5th Cir.'s Smith Doesn't Always Fit ‘Conservative' Label

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By Patrick Gregory

Aug. 10 — Judge Jerry E. Smith has given conservatives much to applaud while serving at the U.S. Court of Appeals for the Fifth Circuit.

Opinions by Smith have given them big victories on issues including immigration and affirmative action.

Some conservatives cheered Smith for demanding an explanation of President Barack Obama's statement that it would be unprecedented for courts to invalidate the Affordable Care Act in 2012.

But Smith “does have a good many opinions on his record that cannot reasonably be described as cutting in the conservative direction,” former Smith clerk Ilya Somin, now a professor at George Mason University law school, Arlington, Va., told Bloomberg BNA.

For example, last year Smith wrote an opinion rejecting a challenge to the ACA's contraceptive mandate.

Further, the “textualist” judge “has a strong libertarian streak that leads him to deviate from some views that are often associated with conservative orthodoxy,” former Smith clerk Todd J. Zywicki, also a professor at GMU law school, told Bloomberg BNA.

Immigration, Executive Action

Smith wrote two decisions last year ruling against the Obama administration concerning its deferred action immigration program.

Texas and 25 states challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents program, which allows millions of immigrants to be eligible for lawful presence in the U.S.

The Fifth Circuit first denied a stay against a district court's nationwide preliminary injunction prohibiting implementation of the program, in Texas v. United States, 787 F.3d 733 (5th Cir. 2015) (83 U.S.L.W. 1776, 5/26/15).

The federal government wasn't likely to succeed on the merits of its claim that Texas and 25 other states lacked standing to challenge the programs, the decision written by Smith said.

That was partly because the government didn't dispute the district court's finding “that Texas would lose at least $130.89” on each driver's license it would be required to issue to DAPA beneficiaries, the Fifth Circuit said.

The Fifth Circuit, in an opinion by Smith, later upheld the injunction in Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (84 U.S.L.W. 665, 11/17/15).

A 4-4 tie at the U.S. Supreme Court left that decision in place, in United States v. Texas, 84 U.S.L.W. 4471, 2016 BL 201458 (U.S. June 23, 2016) (85 U.S.L.W. 5, 7/7/16).

But the Obama administration recently asked the high court to rehear the case (85 U.S.L.W. 80, 7/21/16).

Originalist, Textualist

Smith “is an originalist and a textualist on most issues” when judicial precedent doesn't determine the outcome of a dispute, Somin said.

Smith's “opinions are rooted firmly in a consistent set of legal principles, regardless of the political results of the outcome,” Zywicki said.

Zywicki was “struck” by Smith's “strong commitment to a textualist mode of statutory interpretation instead of having judges re-write statutes to serve their own purposes.”

“Judge Smith is an independent thinker who strives to be faithful to the constitutional text,” former Smith clerk Thomas H. Dupree Jr., now a partner and Supreme Court litigator with Gibson, Dunn & Crutcher LLP, Washington, told Bloomberg BNA.

Smith understands “that judges cannot indulge their political or policy preferences,” Dupree—who also served as deputy assistant attorney general under President George W. Bush—said.

‘Hero' to Libertarians

Smith is a star among libertarians, as shown by some of his notable former clerks.

Zywicki and Somin both identify as libertarians and write for the Volokh Conspiracy, which describes its bloggers as “generally libertarian, conservative, centrist, or some mixture of these.”

“I think he has a particularly high standing among” those who are “libertarian-oriented,” Zywicki said.

He pointed to former Smith clerk “ Dana Berliner, who is now a very senior attorney at the Institute for Justice,” a libertarian organization.

Further, Thom Lambert “is a well-known libertarian law professor” at the University of Missouri law school, Zywicki said.

Smith “has a healthy principled skepticism of government power, whether on matters of property rights, criminal procedure, or you name it, that many of us like,” Zywicki said.

“And maybe that even makes him a hero to us!”

First, Fourth Amendments

Smith's willingness to defy conservative orthodoxy is especially apparent in cases involving the First and Fourth amendments, his former clerks said.

Somin remembered an “important” decision concerning an ordinance restricting businesses that sold pornographic material in Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir. 2003).

Encore Videos invalidated that ordinance on First Amendment grounds, in a per curiam opinion joined by Smith.

Another example is Smith's opinion concerning the Fourth Amendment right to protection against unreasonable searches in United States v. Gomez, 276 F.3d 694 (5th Cir. 2001), Somin said.

That decision held “that you have an expectation of privacy in a car parked on your property that you don't own,” Somin said.

This ruling was “at that time the first and only court of appeals opinion” of its kind, he said.

“That's an important step toward stronger protection for Fourth Amendment rights,” Somin said.

Homework Assignment

Smith received national attention in 2012 for giving what many described as “ homework” to the Obama administration at oral argument concerning a challenge to the Affordable Care Act, in Physician Hosps. of Am. v. Sebelius, 691 F.3d 649 (5th Cir. 2012).

Prior to the order, President Obama spoke concerning a separate ACA challenge and the Supreme Court, saying it would be an “unprecedented” act of “judicial activism” that “an unelected group of people would somehow overturn a duly constituted and passed law.”

At oral argument in Physician Hosps., Smith said those comments “troubled a number of people who have read it as somehow a challenge to the federal courts.”

He ordered the federal government to submit a “three pages single spaced” explanation of the Department of Justice's position on judicial review.

Conservative commentator and radio host Rush Limbaugh said he “ started cheering” when he saw the judge “fighting back” against the Obama administration.

But Orin S. Kerr, a professor at George Washington University law school, Washington, said it was “highly inappropriate” for the judge to issue an order based on comments made outside of the judicial record.

ACA Rulings

Despite the “homework” controversy, Smith later joined the Fifth Circuit's decision dismissing the ACA challenge for lack of subject matter jurisdiction.

He subsequently wrote an opinion in the federal government's favor in another ACA challenge in E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015) (83 U.S.L.W. 2007, 6/30/15).

That decision rejected nonprofit religious organizations' claims that the ACA's contraceptive coverage requirements violated the Religious Freedom Restoration Act.

The Supreme Court vacated the decision and remanded the case in Zubik v. Burwell, 84 U.S.L.W. 4257, 2016 BL 154895 (U.S. May 16, 2016 ) (84 U.S.L.W. 1687, 5/19/16).

Impressive Alumni

Smith's influence as a judge can be seen not only in his opinions, but also in the careers of his former clerks.

“He has had an unusually large number of former clerks become law professors,” Zywicki said.

Zywicki estimated that “at least 15” went on to academia.

Smith's “clerkship hires have never been cookie-cutter people,” Zywicki said.

For example, “with my clerk class, I'm a professor, one of the other clerks is now a judge on the federal tax court, and the third is now a scriptwriter for movies and children's television in Hollywood,” he said.

Sen. Tom Cotton (R-Ark.)—described by Time Magazine as “a rising star in conservative circles”—also clerked for Smith.

Affirmative Action

Smith wrote the opinion in the Fifth Circuit's landmark affirmative action decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

Hopwood invalidated the University of Texas law school's affirmative action program under the 14th Amendment's equal protection clause.

The school offered “no compelling justification” to allow “it to continue to elevate some races over others” in its admissions program, the court said.

The 1996 decision remained in place until 2003, when the Supreme Court overruled it in Grutter v. Bollinger, 539 U.S. 306 (2003).

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com

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