[3] 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.

The Court found that affirmative action in student admissions violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

1991), 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.

A large majority of the judges ruled that a "protective sweep" of a man hiding in the woods, which included arresting him without a warrant and seizing his guns, was not a violation of the 4th amendment.

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.

In April 2012, during oral argument in a Fifth Circuit case involving the Patient Protection and Affordable 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.

[6][7][8][9] Though Judge Smith's response and order were criticized by some legal scholars and members of the press,[10] 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.

"[11] U.S. Attorney General Eric Holder said that the Justice Department would respond "appropriately" to the judge's request[12] 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".

[8] 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.

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.

Smith granted qualified immunity to correctional officers for their treatment of a prisoner subjected to six days' seclusion in cells covered in feces, with no water or toilet available, because 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] On January 2, 2021, Smith, along with Patrick E. Higginbotham and Andrew Oldham, affirmed the dismissal for lack of jurisdiction of a lawsuit filed by Louie Gohmert aimed at empowering Vice President Mike Pence to overturn President-Elect Joseph Biden's Electoral College win.

[16][17] On February 9, 2022, Smith was one of two judges who declined to rule on a request to stay a preliminary injunction against Biden's COVID-19 vaccine mandate for federal employees.

[18] On February 17, Smith dissented when the majority, Jennifer Walker Elrod and Andy Oldham, reversed the district court's order denying a preliminary injunction to employees challenging United Airlines' vaccine mandate.

[19] Smith's dissent of nearly 60 pages 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.".

[19] "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,'" Judge Smith concluded, quoting the late Supreme Court Justice Antonin Scalia.