Notable cases
2012 on Obamacare
In April 2012, during oral argument in a Fifth Circuit case involving the Patient Protection and Affordable Care Act (ACA), Smith ordered the United States Department of Justice to provide his panel of three judges with a three-page, single-spaced report explaining President Barack Obama's views on judicial review. Smith's order was prompted by Obama's recent press conference remarks on the then-pending case National Federation of Independent Business v. Sebelius before the Supreme Court in which the Court was considering, among other things, whether to strike down the entire ACA as unconstitutional. Obama had stated 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."[6] These remarks were criticized by many as historically and legally inaccurate.[7][8] Though Judge Smith's response and order were criticized by some legal scholars and members of the press,[9] George W. 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."[10] U.S. Attorney General Eric Holder said that the Justice Department would respond "appropriately" to Smith's request[11] 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".[12]
2012 on the scope of Congress's power
In July 2012, Smith authored the majority opinion for the en banc Fifth Circuit in United States v. Kebodeaux, 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 (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]
2019 on qualified immunity
In 2019, Smith wrote the majority opinion in Taylor v. Williams, a civil rights case filed by a prisoner against several correctional officers for their treatment of him, during which he subjected to six days' seclusion in cells covered in feces, with no water or toilet available. Smith granted qualified immunity to the officers because he ruled that 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][16]
2022 on vaccine mandates
On February 9, 2022, Smith and Judge Don Willett formed the majority of a panel that declined to rule on a request to stay a preliminary injunction against Biden's COVID-19 vaccine mandate for federal employees. Judge Stephen A. Higginson dissented from the ruling, arguing that the government was entitled to an immediate stay while it appealed.[20][21]
On February 17, Smith dissented when the panel majority consisting of Judges Jennifer Walker Elrod and Andrew Oldham reversed the district court's order denying a preliminary injunction to employees challenging United Airlines' vaccine mandate.[22] Smith's nearly 60-page dissent 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." He also criticized the majority for hiding its "made-up" legal theory in an unsigned and unpublished opinion. Judge Smith concluded, quoting the late Supreme Court Justice Antonin Scalia, "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.'"[23] Slate magazine described Smith's dissent as a "60-page burst of fury" and "one of the angriest dissents of his career".[24]
2023 on death penalty
On October 9, 2023, Smith dissented from an order upholding a stay of execution for convicted murderer Jedidiah Murphy. Smith attached a fake majority opinion to his otherwise brief dissent, demonstrating what he thought the majority opinion should have been.[25][26]
