Federal Judges Shouldn’t Be Polite to Unserious Hacks
A fake majority opinion from Fifth Circuit Judge Jerry Smith demonstrates how the legal profession's obsession with civility rewards the worst people in politics.
In a two-sentence order issued on Tuesday, the U.S. Supreme Court greenlit Texas’s efforts to execute Jedidiah Murphy, over the objections of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Several hours later, as the annual observance of World Day Against the Death Penalty came to a close, officials at the state penitentiary in Huntsville killed Murphy by lethal injection.
If a judge on the U.S. Court of Appeals for the Fifth Circuit had had his way, the Supreme Court wouldn't even have needed to act. In a 2-1 decision on Monday, a three-judge Fifth Circuit panel upheld a lower court’s stay of Murphy’s execution while his lawyers challenged evidence used to sentence him to death. The lone dissenter was Jerry Smith, whom President Ronald Reagan elevated to the country’s most conservative federal appeals court in 1987. “The majority opinion is grave error,” Smith wrote, excoriating his colleagues for buying “a vapid last-minute attempt to stay an execution that should have occurred decades ago.”
All of this sounded like standard-issue Reagan appointee bloodlust, but what followed was not. “In the interest of time, instead of penning a long dissent pointing to the panel majority and district court’s myriad mistakes, I attach the Fifth Circuit panel opinion that should have been issued,” Smith wrote. Sure enough, he then included what looks like a real majority opinion that purports to vacate the stay and allow Texas to move ahead with Murphy’s execution. At 18 pages, Smith’s fake majority opinion is more than three times longer than the actual majority opinion, and explains in painstaking detail on behalf of a nonexistent unanimous panel why Jedidiah Murphy should have been dead already.
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