Jerry Edwin Smith
|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 by 98 Stat. 333|
Jerry Edwin Smith|
November 7, 1946
Del Rio, Texas
Yale University (B.A.)|
Yale Law School (J.D.)
Jerry Edwin Smith (born November 7, 1946) is a United States Circuit Judge of the United States Court of Appeals for the Fifth Circuit.
Education and career
Born on November 7, 1946, in Del Rio, Texas, Smith received a Bachelor of Arts degree from Yale University in 1969. He received a Juris Doctor from Yale Law School in 1972. He was a law clerk for Judge Halbert O. Woodward of the United States District Court for the Northern District of Texas from 1972 to 1973. He was in private practice of law in Houston, Texas from 1973 to 1984. He was Director of the Harris County Housing Authority 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.
Federal judicial service
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.
Judge Smith wrote the majority opinion in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), in which the Fifth Circuit struck down the use of affirmative action in admissions at the University of Texas School of Law. Seven years later, the decision was abrogated (i.e., effectively overruled in a different case) by the U.S. Supreme Court's decision in Grutter v. Bollinger, 539 U.S. 306 (2003).
In Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991), Judge 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.
In Regents of the University of California v. Credit Suisse First Boston, 482 F.3d 372 (5th Cir. 2007), Judge Smith wrote the majority opinion barring securities fraud claims against third parties who aided in securities fraud but did not directly mislead investors. The decision was upheld by the Supreme Court in Stoneridge Investment Partners v. Scientific-Atlanta, 552 U.S. 148 (2008).
Judge 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.
In November 2011, Judge Smith, sitting on a special three-judge district court, dissented in Perez v. Perry, 835 F. Supp. 2d 209 (W.D. Tex. 2011), in which the majority adopted an interim redistricting map for the Texas House of Representatives. In his dissent, Judge Smith characterized the majority's map as being of the "purest of intentions" but "extreme" and "untethered to the applicable caselaw." Agreeing with Judge Smith, the Supreme Court unanimously vacated the district court's majority opinion in Perry v. Perez, 565 U.S. 388 (2012).
In April 2012, during oral argument in a Fifth Circuit case involving the Affordable Health Care Act (ACA), Judge 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. Though Judge Smith's response and order were criticized by some legal scholars and members of the press, 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." U.S. Attorney General Eric Holder said that the Justice Department would respond "appropriately" to the judge's request 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".
In July 2012, Judge Smith authored the bipartisan 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. The decision was reversed 7-2 by the Supreme Court in United States v. Kebodeaux, 133 S. Ct. 2496 (2013), on the ground 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." 
In November 2013, Judge Smith authored the court's opinion BP RE, L.P. v. RML Waxahachie Dodge, L.L.C. (In re BP RE, L.P.), 735 F.3d 279 (5th Cir. 2013), holding that a bankruptcy court lacked power under Article III of the Constitution to adjudicate "non-core" bankruptcy claims even where the parties to the proceeding consented to the bankruptcy court's authority to adjudicate the claims. Judge Smith's opinion was later abrogated in a 6-3 opinion by the Supreme Court in Wellness International Network, Ltd. v. Sharif, 135 S. Ct. 92 (2015).
In July 2014, Judge Smith dissented in Texas Division, Sons of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388 (5th Cir. 2014), in which the majority held that the Texas Department of Motor Vehicle's decision to deny an application for a specialty license plate featuring the Confederate battle flag violated the Free Speech Clause of the First Amendment. In his dissent, Judge Smith said that the specialty license plate constituted government speech rather than private speech and that therefore the First Amendment did not apply. The Supreme Court later agreed with Judge Smith in a 5-4 opinion in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).
In June 2015, Judge Smith authored the court's opinion in East Texas Baptist University v. Burwell, 793 F.3d 449 (5th Cir. 2015), upholding the Obama Administration's requirement that religious organizations either offer their employees health insurance that covers certain contraceptive services or submit a form or notification declaring their religious opposition to that coverage. Judge Smith's opinion rejected the argument that the Obama Administration's rule violated the Religious Freedom Restoration Act, finding that it did not substantially burden the religious exercise of religious organizations. His opinion was later vacated in a per curiam opinion by the Supreme Court in Zubik v. Burwell, 136 S. Ct. 1557 (2016), which called on the parties to reach a compromise that both accommodated religious institutions' exercise of religion while at the same time ensuring that women covered by religious institutions' health plans receive contraceptive coverage. The Trump Administration has since drafted a rule to roll back the Obama Administration's contraceptive requirement for many religious employers.
In November 2015, Judge Smith wrote the majority opinion in Texas v. United States, 809 F.3d 134 (5th Cir. 2015), which held that the Obama Administration's Deferred Action for Parents of Americans and Lawful Permanent Residents program ("DAPA") violated the Administrative Procedure Act and affirmed the district court's preliminary injunction forbidding implementation of DAPA. In United States v. Texas, 136 S. Ct. 2271 (2016), the Supreme Court affirmed the judgment by an equally divided vote. In June 2017, the Trump Administration announced that it would not implement DAPA.
In March 2017, Judge Smith authored a unanimous opinion in American Humanist Ass'n v. McCarthy, 851 F.3d 521 (5th Cir. 2017), holding that the Birdville Independent School District's policy of inviting students to make speeches, which could include invocations, before school board meetings did not violate the Establishment Clause of the First Amendment, under the Supreme Court's legislative prayer exception.
Judge Smith's former clerks include:
- Dana Berliner (1991–92), Litigation Director at the Institute for Justice
- Hon. Jimmy Blacklock (2005–06), Justice, Texas Supreme Court
- Ronald J. Colombo (1998–99), Professor of Law, Maurice A. Deane School of Law at Hofstra University
- Tom Cotton (2002–03), U.S. Senator
- Joseph M. Ditkoff (1996–97), Associate Justice, Massachusetts Appeals Court
- Thomas Dupree (1997–98), former Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice
- Hon. Allison H. Eid (1991–92), Judge, U.S. Court of Appeals for the Tenth Circuit, and former Justice of the Colorado Supreme Court
- Stephen E. Henderson (1999–2000), Judge Haskell A. Holloman Professor of Law, University of Oklahoma College of Law
- Jim Hawkins (2006–07), George Butler Research Professor of Law, University of Houston Law Center
- Hon. James C. Ho (1999–2000), Judge, U.S. Court of Appeals for the Fifth Circuit, and former Solicitor General of Texas
- Thomas Johnson (2005–06), General Counsel, Federal Communications Commission
- Daryl Joseffer (1995–96), former Principal Deputy Solicitor General of the United States
- Lee Kovarsky (2004–05), Professor of Law, University of Maryland School of Law
- Julian Ku (1998–99), Maurice A. Deane Distinguished Professor of Constitutional Law and Faculty Director of International Programs, Maurice A. Deane School of Law at Hofstra University, and cofounder of Opinio Juris
- Thom Lambert (1998–99), Wall Family Chair of Corporate Law and Governance, University of Missouri School of Law
- Mithun Mansinghani (2011–12), Solicitor General of Oklahoma
- Hon. Richard T. Morrison (1993–94), Judge, United States Tax Court
- Hon. John B. Nalbandian (1994–95), Judge, U.S. Court of Appeals for the Sixth Circuit
- Keith Noreika (1997-98), former Acting Comptroller of the Currency of the United States
- Aaron Nielson (2007–08), Associate Professor of Law, J. Reuben Clark Law School at Brigham Young University
- Margaret Peterlin (2000–01), former Chief of Staff to the United States Secretary of State and former Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office
- Prerak Shah (2010–11), Chief of Staff to U.S. Senator Ted Cruz
- Ilya Somin (2001–02), Professor of Law, George Mason University School of Law, and Volokh Conspiracy contributor
- David H. Steinberg (1993–94), screenwriter
- Todd Zywicki (1993–94), George Mason University Foundation Professor of Law and Executive Director of the Law & Economics Center, George Mason University School of Law, and Volokh Conspiracy contributor
- Who's who in the South and Southwest. Marquis Who's Who. 2005. ISBN 9780837908359. Retrieved 2015-04-13.
- "Smith, Jerry Edwin - Federal Judicial Center". www.fjc.gov.
- Pelofsky, Jeremy.; Doggett, Tom. Court refuses stay in deepwater drilling case. Reuters Canada. July 8, 2010.
- Brooks Jackson, Factcheck.org, Fact check: Obama's Supreme Court remarks USAToday, April 5, 2012
- Goodwin, Liz. Jerry Smith’s Obama rebuke questioned by legal experts Yahoo News' The Lookout. April 4, 2012.
- Jerry Markon. In letter to judge, Holder defends Obama’s comments urging Supreme Court to uphold health-care law, The Washington Post, April 5, 2012.
- Remarks by the President at the Associated Press Luncheon whitehouse.gov April 3, 2012.
- Kerr, Orin. , "The Volokh Conspiracy." April 3, 2012.
- Sam Baker. Bush attorney general defends judge’s probe of Obama healthcare comments, The Hill, 04/04/12.
- United States v. Kebodeaux from uscourts.gov
- United States v. Kebodeaux, 133 S. Ct. 2496, 2507 (2013) (Roberts, C.J., concurring in the judgment)
- Jerry Edwin Smith at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
- Bloomberg BNA profile on Judge Smith
Seat established by 98 Stat. 333
| Judge of the United States Court of Appeals for the Fifth Circuit