Texas Supreme Court Justice John Devine, a figure known for his staunch conservative stance, positioned himself as a counterpoint to his supposedly “brainwashed” colleagues within the state’s highest court during a September address to East Texas voters. Devine suggested that their backgrounds in prominent law firms had led them to prioritize procedural technicalities over their constitutional obligations.
“At times I feel like they would sacrifice the Republic for the sake of the process,” Devine stated in the recorded speech obtained by The Texas Tribune. He elaborated, “My concern is that they all bow down to the altar of process rather than to fidelity to the Constitution. And when I say that, it’s not meant to be malice towards my colleagues. I think it’s how they were trained — how they were brainwashed.”
He highlighted a particular instance of disagreement: the court’s decision regarding Jeff Younger, a former Texas House candidate who had been engaged in a protracted public dispute with his ex-wife concerning their child’s gender identity. In 2022, Younger sought the court’s intervention to prevent his ex-wife from relocating their child to California. California had recently enacted a law offering sanctuary to parents seeking to protect their children from states with restrictive gender-transition care policies for minors.
The Texas Supreme Court ultimately declined to hear Younger’s appeal. Some justices argued that Younger’s lawsuit was fundamentally flawed and based on unsubstantiated claims that his ex-wife would violate an existing court order prohibiting gender-transition treatments for their child.
Despite the court’s decision, John Devine remained critical of his fellow justices during his September address. “I’m not going to stand here sanctimoniously and say, ‘Well he didn’t cross a T or dot an I,’” he remarked regarding Younger’s case. “We are talking about great constitutional issues here that will determine whether we survive as a representative republic or not. Are we going to just have it stolen from us? Over process for crying out loud?”
This audio recording provides a rare glimpse into the typically private workings of the Texas Supreme Court and offers insight into the judicial philosophy of John Devine. Devine’s background as an anti-abortion activist and the significant role of his religious beliefs and deeply conservative political views in shaping his judicial career have drawn both praise and criticism. Critics often question his impartiality.
These very concerns are now central to an unusually contentious primary election battle for a seat on the Texas Supreme Court, a race that often flies under the radar. John Devine is unique in facing a challenger, Second District Court of Appeals Judge Brian Walker, in the statewide election on March 5th. Walker’s campaign is primarily focused on questioning John Devine’s ethical conduct, citing instances dating back to the 1990s.
Judge Walker argues, “We have a judge who just continues to violate ethical rules and the code of judicial conduct that’s written by the Texas Supreme Court itself. And if the people can’t trust that judges are going to follow even their own rules, then they’ll have very little confidence that the rule of law truly will prevail.”
John Devine’s three-decade-long history as a prominent figure in the religious right is well-documented. He has publicly stated that he was arrested 37 times during anti-abortion protests in the 1980s and 1990s. Furthermore, he has described the separation of church and state as a “myth,” arguing against the conventional understanding of America’s secular foundations.
Justice Devine’s tenure has garnered commendation from conservatives who view him as a vital defender of religious freedom against what they perceive as activist judges.
Jonathan Saenz, president of Texas Values, commented, “He’s very principled and passionate about his role, and about standing firm and exercising that role even if someone has a different opinion or they’re trying to put some political pressure on him. To me, it’s a reflection of what the people of Texas want and expect.”
Conversely, others contend that John Devine’s time on the bench, and particularly his September remarks, exemplify a gradual weakening of the established norms that once discouraged judges from publicly expressing political opinions or commenting on matters that could potentially come before the court. The aim of these norms was to maintain the appearance of impartiality.
Sanford Levinson, a long-serving legal scholar at the University of Texas at Austin School of Law, noted, “Judges usually didn’t speak that way. And I don’t think that trash talk is a particularly healthy phenomenon.”
However, such concerns seem not to weigh heavily on John Devine. In his September speech, he also criticized various Texas officials regarding diverse legal and political issues. He labeled Texas’ entirely Republican Court of Criminal Appeals – which ruled against Attorney General Ken Paxton’s office’s power to independently prosecute local voting-related offenses – as being controlled by “RINOs” and “trans-Republicans.” He also attacked Democratic leaders in Harris County, accusing them of “Democrat dirty tricks” and attempts to manipulate election laws to steal elections.
Neither John Devine nor a spokesperson for the Texas Supreme Court responded to requests for comments on the excerpts from his speech or questions regarding his statements.
Walker, Devine’s primary challenger, has been vocal in his criticism. Leading up to the March 5th primary, Walker has criticized John Devine for his frequent absences from oral arguments – reportedly missing half of them to campaign – as well as for auctioning private tours of the Texas Supreme Court as a fundraiser in 2023. Walker also questions Devine’s recusals, arguing that Devine should have recused himself from cases where conflicts of interest existed.
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Alt text: Texas Supreme Court Justice John Devine attentively listens to oral arguments concerning Governor Abbott’s executive order on mask mandates, during a consolidated hearing in Austin, February 22, 2023.
Earlier this month, reports emerged that John Devine did not recuse himself from a prominent sex abuse lawsuit against Southern Baptist leader Paul Pressler and Jared Woodfill, his former law partner. The plaintiff in this case, who was previously employed by Woodfill and Pressler’s firm, alleges sexual abuse by Pressler during the period when John Devine was also associated with the firm.
John Devine has defended his decision not to recuse himself from the sex abuse lawsuit, stating that he had no financial or other vested interests in the case or in Woodfill and Pressler’s firm. He has also minimized the significance of his absences from oral arguments, dismissing it as a “non-issue” and a natural consequence of an elected judiciary.
“The fact is we’re elected and part of our job is to run for reelection,” John Devine told Bloomberg Law, which initially reported on his absences. “It doesn’t do you any good if you don’t get reelected.”
The Formation of a Jurist: John Devine’s Early Career
John Devine’s journey into Texas politics began in the 1980s after his move from Indiana to the Houston area. He enrolled at the South Texas College of Law and became deeply involved in the then-nascent anti-abortion movement in Texas.
Joe Pojman, executive director of Texas Alliance For Life, recalled, “It was very small and fragmented — nothing compared to what it is now. We were very hopeful. But there hadn’t been much accomplished tangibly at that point.”
Finding limited avenues to exert influence, some members of the movement, including John Devine, focused on protesting outside abortion clinics. Devine later recounted serving 34 days in jail for obstructing access to an abortion clinic during a protest.
A turning point occurred in 1992, according to Pojman, when Eileen O’Neill, a state district judge in Harris County, imposed restrictions on protesters, prohibiting them from being within 100 feet of abortion clinics in anticipation of the Republican National Convention in Houston. This ruling was perceived as an affront to their First Amendment rights.
Later that year, John Devine, then 32, challenged Judge O’Neill as a write-in candidate. His campaign, centered around the theme of “Christianity in American Law,” gained support from figures like Steven Hotze, a well-known anti-gay activist and influential figure in Houston’s conservative Christian circles.
However, John Devine’s candidacy also faced opposition. Eleven local Republican precinct chairs issued a public letter opposing his endorsement by the state and local GOP, asserting that Devine did not respect the principle of separation between church and state. Despite receiving approximately 40,000 write-in votes – a local record – he did not win the election.
Undeterred, John Devine again challenged O’Neill two years later. He portrayed her as an incompetent and unethical judge who was frequently absent from her judicial duties. (Ironically, in the current primary race, Walker is criticizing Devine for missing 28 out of 50 oral arguments before the Texas Supreme Court.)
In a Republican surge, fueled by straight-ticket voting in Harris County and anti-Clinton sentiment, John Devine won the judgeship by a narrow margin. He hailed this victory as a triumph for “little people like myself” against the “bar association” and “arrogant lawyers.”
Upon assuming his judgeship in Harris County, John Devine made headlines by placing a copy of the Ten Commandments in his courtroom and leading the effort to restore a monument featuring a Bible outside a county courthouse. These actions sparked lawsuits and controversy, which Devine dismissed as attacks on religious freedom.
“We are at war now over the systematic elimination of Christian tradition from civil government,” he declared in 2004, after a judge ruled against the Bible monument. “This is just one more battle. If they take the Bible, the battle will continue for the heart and soul of America.”
In 1996, John Devine used his courtroom to announce his congressional campaign during an after-hours event, resulting in a sanction from the State Commission on Judicial Conduct for exploiting the “prestige of judicial office to advance the private interests of the judge or others.” Later that year, he presided over a lawsuit involving a major labor union and U.S. Congressman Steve Stockman concerning political advertisements. John Devine acknowledged the potential impact of the case’s outcome on his own congressional campaign but declined to recuse himself until the following day, after publicly criticizing the union during the hearing.
Although John Devine lost the congressional race, he was re-elected as a Harris County state district judge. In 1999, he ran for the Texas Court of Criminal Appeals, promising to be “short on words, but long on sentences.” He was unsuccessful in this bid but returned to district court until 2002, when he resigned to run for Harris County Attorney.
During the 2002 race, John Devine faced scrutiny from the Texas Ethics Commission, which found that he had failed to disclose his position as president of a real estate company on financial disclosure forms dating back to 1994. The State Commission on Judicial Conduct also raised concerns about Devine’s use of his county phone number for business purposes.
John Devine amended his financial disclosures but denied using his public office for personal gain. He ultimately lost the 2002 primary.
“Devine Intervention”: The Ascent to the Texas Supreme Court
Throughout the 2000s, John Devine persisted in his pursuit of elected office. He unsuccessfully ran for Congress again in 2004, a campaign marred by allegations that his campaign mailed misleading endorsements. His 2006 bid for the Texas House and a 2010 campaign for a Montgomery County judgeship also ended in defeat.
Yet, in 2011, John Devine announced a challenge to incumbent Texas Supreme Court Justice David Medina in the statewide GOP primary, demonstrating his unwavering ambition.
John Devine’s campaign heavily emphasized a personal narrative: his and his wife Nubia’s decision to carry their seventh child to term despite severe medical warnings that endangered both the child and Nubia’s life. Tragically, the child passed away shortly after birth, but Nubia Devine survived.
His campaign garnered endorsements from influential religious figures such as David Barton, a Texas activist known for promoting the false claim that church-state separation is a “myth.” The Texas Tea Party movement, fueled by fears of persecution of Christians under President Barack Obama, also rallied behind John Devine.
This grassroots sentiment was captured in a letter to a local newspaper by a San Angelo resident, who compared American Christians to Jews in Nazi Germany and pleaded for a “Devine intervention.”
“If we don’t get back to our Christian principles, like the Ten Commandments and honoring the Constitution of the United States, we are lost and so are our children and grandchildren,” she wrote.
A significant anti-establishment wave swept through Texas politics. Tea Party favorite Ted Cruz achieved a stunning victory over Lt. Gov. David Dewhurst in a GOP runoff for a U.S. Senate seat. Donna Campbell, a relatively unknown emergency room physician, unseated a 20-year incumbent in the Texas Senate.
John Devine capitalized on this political climate, defeating Medina by 6 points in a runoff and securing a decisive victory in the November 2012 general election.
John Devine: A Jurist Shaped by Grassroots Movements
John Devine’s election to the Texas Supreme Court coincided with a crucial juncture for the conservative movement that had propelled him.
By 2012, Texas, under then-Attorney General Greg Abbott, was engaged in extensive legal battles with the Obama administration, frequently challenging federal policies on environmental regulations, the Affordable Care Act, and other issues deemed federal overreach by GOP critics. John Devine’s ascent also aligned with the growing influence of a broader conservative Christian legal movement across the nation.
Justice John Devine has become a key ally of this movement. Since joining the bench, he has consistently championed “Judeo-Christian principles” as the foundational bedrock of the nation. He has also frequently dissented from his colleagues on issues of importance to the Religious Right.
Notably, just before the U.S. Supreme Court recognized the constitutional right to same-sex marriage in 2015, John Devine issued a lengthy 15-page dissent. This dissent criticized his fellow justices’ decision in a separate case involving same-sex couples who had married in Massachusetts and later sought divorce in Texas. The core legal question was whether Texas law recognized their marriage as valid for divorce purposes.
While the court majority ultimately sided with the appeals court, ruling that the state lacked standing to sue, John Devine’s dissent underscored his contrasting judicial philosophy.
The following year, John Devine was the sole dissenting voice when the court declined to hear a challenge to the City of Houston’s decision to extend marriage benefits to same-sex city employees.
In his dissent, John Devine argued that Texas had a historical basis for defining spousal benefits to promote procreation and other societal objectives.
“Surely the State may limit spousal employment benefits to spouses of the opposite sex,” he wrote. “Only these spouses are capable of procreation within their marriage, and the State has an interest in encouraging such procreation.”
This dissent was lauded by conservative leaders, including then-Governor Abbott and Attorney General Paxton, who publicly criticized the court’s majority and urged their colleagues to adopt John Devine’s perspective.
In an unusual move, the Texas Supreme Court revisited the issue and, in 2017, unanimously ruled that the right to marry did not automatically include specific tax benefits, employee benefits, or testimonial privileges.
Jonathan Saenz of Texas Values, who was involved in this legal dispute, believes it solidified John Devine’s reputation within conservative Christian circles as a staunch defender of religious liberty, resistant to external pressures.
Saenz sees John Devine as a reflection of a movement that has matured from the fragmented energy of the Tea Party era into a more cohesive and influential force. These voters, he argues, are increasingly focused on the state’s judiciary. In Texas, where judicial elections often have low voter turnout in primaries, this voting bloc has effectively pushed the courts toward their conservative legal and political viewpoints.
“Voters expect judges to follow the Constitution at the state and the federal level, and not see it as this living, breathing document that they can change depending on what the facts are of some case that may not fit their own political ideas or agenda,” Saenz stated. “Judges like Justice Devine understand that this is what the voters expect, that this is what his role is. And he’s very committed to it.”
Sanford Levinson, the constitutional scholar, acknowledges the growing influence of voters in shaping the judiciary but expresses concern that this trend has exacerbated political polarization. He suggests it has opened a “Pandora’s box,” leading to heightened rhetoric that obscures nuanced and essential discussions about the role of religion in a democratic society.
“I think that’s a perfectly legitimate topic for discussion and debate,” he concluded. “But we seem incapable of having it.”
