Jerry Edwin Smith

For other people named Jerry Smith, see Jerry Smith (disambiguation).

Jerry Edwin Smith
Judge of the United States Court of Appeals for the Fifth Circuit
Incumbent
Assumed office December 21, 1987
Appointed by	Ronald Reagan
Preceded by	Seat established
Personal details
Born	(1946-11-07) November 7, 1946 Del Rio, Texas, U.S.
Alma mater	Yale University

Jerry Edwin Smith (born November 7, 1946) is a judge on the United States Court of Appeals for the Fifth Circuit. He was nominated by President Ronald Reagan on June 2, 1987 and confirmed by the Senate on December 19, 1987. Smith received his commission for the seat two days later.

Smith attended Yale University and Yale Law School, earning his bachelor's degree in 1969 and his J.D. in 1972. After law school, he clerked for Judge Halbert O. Woodward on the United States District Court for the Northern District of Texas.

Smith later served as the director of the Harris County Housing Authority (1978–1980), Special Assistant Attorney General of Texas (1981–1982), chairman of the Houston Civil Service Commission (1982–1984), and the City Attorney for Houston, Texas (1984–1987).

Notable cases

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 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), 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).

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 April 2012, during oral argument in a Fifth Circuit case involving the Affordable Health 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. 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 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." 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, 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 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."

Clerks

Judge Smith's former clerks include:

• Dana Berliner (1991–92), litigation director at the Institute for Justice
• Ronald J. Colombo (1998–99), professor of law, Maurice A. Deane School of Law at Hofstra University
• Tom Cotton (2002–03), U.S. Senator
• Thomas Dupree (1997–98), former Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice
• Hon. Allison H. Eid (1991–92), justice, Colorado Supreme Court
• Stephen E. Henderson (1999–2000), professor of law, University of Oklahoma College of Law
• James C. Ho (1999–2000), former Solicitor General of Texas
• 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
• Hon. Richard T. Morrison (1993–94), judge, United States Tax Court
• Aaron Nielsen (2007–08), professor of law, J. Reuben Clark Law School at Brigham Young University
• 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, George Mason University School of Law, and Volokh Conspiracy contributor

External links

• Jerry Edwin Smith at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
• Bloomberg BNA profile on Judge Smith