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In leaked audio, Supreme Court Justice John Devine railed against “brainwashed” GOP colleagues

By Robert Downen, The Texas Tribune

In leaked audio, Supreme Court Justice John Devine railed against “brainwashed” GOP colleagues” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Speaking to a group of East Texas voters in September, state Supreme Court Justice John Devine cast himself as the antidote to his “brainwashed” colleagues on the all-Republican bench.

Their “Big Law” backgrounds, he said, had taught them to worry more about legal procedures — “standing, timeliness, or whatever else” — than their duty to uphold the Constitution.

“At times I feel like they would sacrifice the Republic for the sake of the process,” Devine said in the speech, a recording of which was obtained by The Texas Tribune. “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.”

Particularly egregious, he said, was their ruling against Jeff Younger, a former Texas House candidate who had for years waged a public war against his ex-wife over their young child’s gender identity. In 2022, Younger asked the court to stop his ex from moving their child to California, which had recently passed a refuge law shielding parents fleeing from states that restrict gender-transitioning care for minors from prosecution.

The court declined to hear Younger’s lawsuit, which two justices argued was riddled with errors and based on “tenuous speculation” that the ex-wife would violate a standing court order that already prevented her from pursuing gender-transition therapies for the child.

Devine was still angry at his colleagues when he spoke at the September event.

“I’m not going to stand here sanctimoniously and say, ‘Well he didn’t cross a T or dot an I,’” he said of Younger. “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?”

The audio is a rare glimpse into Texas’ typically-insular high court and window into the judicial philosophy of Devine, a former anti-abortion activist whose tenure as a jurist has been shaped by his religious beliefs and deeply conservative politics — sometimes, his critics say, at the expense of his impartiality.

Those concerns are now the focus of an unusually heated primary election for the relatively unknown Texas Supreme Court. Devine is the only justice with a challenger in the statewide, March 5 race, and his opponent, Second District Court of Appeals Judge Brian Walker, has centered his campaign on questions about Devine’s ethics dating back to the mid-1990s.

“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,” Walker said in an interview. “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.”

For 30 years, Devine has been a stalwart of the religious right. He claimed on the campaign trail that he was arrested 37 times at anti-abortion protests in the 1980s and 1990s, and says church-state separation is a “myth” that has shrouded America’s true Christian roots.

As a justice, Devine has earned praise from conservatives and repute as a bulwark between religious liberty and the activist judges they feel threaten it.

“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,” said Jonathan Saenz, president of Texas Values. “To me, it’s a reflection of what the people of Texas want and expect.”

But to others, Devine’s tenure and September comments reflect what they say is a decadeslong erosion of norms that once dissuaded jurists from airing their political grievances or speaking on topics that could one day be in front of the court out of concern about the appearance of bias.

“Judges usually didn’t speak that way,” said Sanford Levinson, a longtime legal scholar at the University of Texas at Austin School of Law. “And I don’t think that trash talk is a particularly healthy phenomenon.”

That’s not an apparent concern for Devine, who in his September remarks also took aim at a number of Texas officials over a variety of legal or political disputes. Texas’ all-GOP Court of Criminal Appeals — which ruled that Attorney General Ken Paxton’s office could not unilaterally prosecute local voting crimes — is controlled by “RINOs” and “trans-Republicans,” Devine said. He also railed against Democratic leaders in Harris County, accusing them of “Democrat dirty tricks” and trying to “bastardize our election code” to steal elections.

Devine did not respond to interview requests or a list of questions, and a Texas Supreme Court spokesperson declined to comment on excerpts of Devine’s speech.

His comments have been criticized by Walker who, in the lead up to the March 5 primary, has also blasted Devine for missing half of oral arguments as he campaigned this year; auctioning private tours of the Texas Supreme Court for a 2023 GOP fundraiser; and not recusing himself from cases in which Walker argues that Devine had conflicts of interest.

[Despite ties to defendants, Texas Supreme Court justice didn’t recuse himself from sex abuse case]

Earlier this month, the Tribune reported that Devine did not recuse himself in a high-profile sex abuse lawsuit against Southern Baptist leader Paul Pressler and his former law partner Jared Woodfill. The plaintiff in the case, a former employee of Woodfill and Pressler’s firm, said he was sexually abused by Pressler at the same time that Devine also worked for the firm.

Devine has defended his decision not to recuse himself in the sex abuse lawsuit, previously telling the Tribune that he had no financial or other ties to the lawsuit or Woodfill and Pressler’s firm. He’s also downplayed his absences from oral arguments this year, calling it a “non-issue” and natural consequence of having an elected judiciary.

“The fact is we’re elected and part of our job is to run for reelection,” Devine told Bloomberg Law, which first reported on his absences this month. “It doesn’t do you any good if you don’t get reelected.”

Forged by a movement

After moving to the Houston area from Indiana in the 1980s, Devine enrolled at the South Texas College of Law and jumped head-first into Texas’ nascent anti-abortion movement.

“It was very small and fragmented — nothing compared to what it is now,” said Joe Pojman, executive director of Texas Alliance For Life. “We were very hopeful. But there hadn’t been much accomplished tangibly at that point.”

With relatively few powerful allies or ways to spread their message, some in the movement turned their attention toward protests outside clinics. Among them was Devine, who later said that he served 34 days in jail for blocking the entrance to an abortion clinic during one protest.

One inflection point came in 1992, Pojman said, when Eileen O’Neill, a state district judge in Harris County, barred protesters from being within 100 feet of abortion clinics ahead of the Republican National Convention held in Houston that year. It was an “insulting” ruling, Pojman said, that they believed trampled on their First Amendment rights.

Later that year, the then-32-year-old Devine challenged O’Neill as a write-in candidate. Centered on the concept of “Christianity in American Law,” his campaign was supported by figures such as Steven Hotze, an anti-gay activist and longtime powerbroker in Houston’s conservative Christian movement.

Devine also faced opposition: Ahead of the election, 11 local Republican precinct chairs issued a letter opposing his endorsement by the state and local GOP, saying Devine did not honor the “wall between church and state.” Devine got some-40,000 write-in votes — a local record, but not enough to win.

Two years later, he again challenged O’Neill, casting her as an incompetent and unethical judge who was “absent from the bench almost as much as she has been present.” (Now, in his primary challenge, Walker is attacking Devine for missing 28 of 50 oral arguments before the court this term.)

In a Republican wave that was bolstered by straight-ticket voting in Harris County and anti-Clinton sentiment, Devine won the judgeship by a half of a percentage point — a victory, he said, for the “little people like myself” against the “bar association” and its “arrogant lawyers.”

Soon after taking the bench in Harris County, Devine adorned his courtroom with a copy of the Ten Commandments and spearheaded the refurbishment of a monument outside of a county courthouse that featured a Bible. Both moves drew lawsuits and controversy that Devine dismissed as attacks on religious liberty.

“We are at war now over the systematic elimination of Christian tradition from civil government,” he said in 2004, after a judge sided with a woman who sued over 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, Devine used his courtroom for an after-hours event to announce a congressional campaign, earning a sanction by the State Commission on Judicial Conduct for using the “prestige of judicial office to advance the private interests of the judge or others.” And later that year, he presided over a lawsuit between a major labor union and U.S. Congressman Steve Stockman over political advertisements. Devine acknowledged that the outcome of the case could affect his ongoing campaign for a congressional district near Stockman’s, but declined to recuse himself until the next day — and after using the hearing to publicly blast the union.

Devine lost that congressional race, but was reelected as a Harris County state district judge and, in 1999, ran for the Texas Court of Criminal Appeals on a promise to be “short on words, but long on sentences.” He lost, but returned to district court until 2002, when he resigned to run for Harris County Attorney.

During that race, Devine was criticized by the Texas Ethics Commission, which found that he had not disclosed his position as president of a real estate company on financial forms dating back to 1994. The State Commission on Judicial Conduct also said that Devine may have violated other rules by listing his county phone number for the business.

Devine corrected his financial disclosures but denied using his office for personal business. He eventually lost in the 2002 primary.

“Devine intervention”

Throughout the aughts, Devine kept at his quest for elected office. He lost a second congressional race, in 2004, during which his campaign was accused by three GOP figures of mailing phony endorsements on their behalf. His 2006 bid for the Texas House failed, as did his 2010 campaign for a Montgomery County judgeship.

Still undeterred in 2011, Devine announced his challenge to incumbent Texas Supreme Court Justice David Medina in the statewide GOP primary.

Devine’s campaign focused heavily on the decision by him and his wife, Nubia, to carry a seventh child to term despite doctors warning that the child and Nubia could die. The child died almost immediately, but Nubia Devine survived.

Along the way, he picked up endorsements from religious figures such as David Barton, a prominent Texas activist who, like Devine, falsely claims that church-state separation is a “myth.” Also backing Devine was Texas’ Tea Party movement, which had coalesced around intense fears that President Barack Obama would use his second term to persecute Christians en masse.

The mood of the grassroots was reflected by a San Angelo woman who, in a letter to her local paper, compared American Christians to Jews in Nazi Germany and begged 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.

What followed was a dark-red, anti-establishment wave. Tea Party darling Ted Cruz shocked the nation by beating Lt. Gov. David Dewhurst in a GOP runoff for a U.S. Senate seat. Donna Campbell, a little-known emergency room physician, ousted a 20-year incumbent in the Texas Senate.

Devine beat Medina by 6 points in a runoff and cruised to victory in the November 2012 general election.

The grassroots’ jurist

Devine’s rise to the court came at a pivotal moment for the movement that forged him.

By 2012, Texas — led by then-Attorney General Greg Abbott — was in the throes of an all-out legal war with the Obama administration, frequently taking his administration to court over environmental rules, the Affordable Care Act or other policies that GOP critics decried as federal overreach. Devine’s election also coincided with the growth of a broader conservative, Christian legal movement that has since been ascendent across the nation.

Devine has proven an ally of that movement: Since taking the bench, he has continued to praise “Judeo-Christian principles” as the bedrock of the nation’s founding. And he has at times been a key dissent from his colleagues on issues favored by the Religious Right.

Just before the U.S. Supreme Court’s recognized a constitutional right to same-sex marriage in 2015, Devine issued a 15-page dissent in which he criticized his colleagues’ decision in a separate lawsuit involving same-sex couples. At issue were two women who married in Massachusetts and, after moving to Texas, were granted a divorce in Tarrant County.

The state appealed, arguing the couple had no right to divorce because their union was never valid under Texas law. The court majority later sided with the appeals court, ruling that the state had no standing to sue because it had failed to intervene when the divorce was in trial court.

The next year, Devine issued a lone dissent after the court’s majority declined to hear a legal challenge to the City of Houston’s decision to extend marriage benefits to the spouses of gay and lesbian city workers.

Texas, Devine wrote in his dissent, had a long history of dictating spousal benefits in order to encourage procreation or other societal goods.

“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.”

Devine’s dissent was praised by conservative leaders, including Abbott and Paxton, who publicly criticized the court’s decision and campaigned for Devine’s colleagues to take up his position.

In a rare move, the Texas Supreme Court eventually revisited the issue, unanimously ruling in 2017 that the right to marry does not “entail any particular package of tax benefits, employee fringe benefits or testimonial privileges.”

Saenz, of Texas Values, was involved in that dispute, which he said catalyzed Devine’s reputation in conservative Christian circles as a defender of religious liberty who “is not going to be pushed around, bullied or bought.”

In Devine, Saenz sees the reflection of a movement that has grown from the at-times disjointed energy of the Tea Party era into something much stronger and better organized. Those voters, he said, have been increasingly attuned to the state’s judiciary. And in Texas, where judges are elected in typically low-turnout primaries, they have wielded their voting power to push courts toward their conservative legal and political views.

“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 said. “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.”

Levinson, the longtime constitutional scholar, agreed that the judiciary has been increasingly shaped by voters. But he worries that trend has further polarized the country, opening up a “Pandora’s box” that has allowed intense, existential rhetoric to cloud nuanced and much-needed conversations about the role of religion in democracy.

“I think that’s a perfectly legitimate topic for discussion and debate,” he said. “But we seem incapable of having it.”

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/02/27/john-devine-texas-supreme-court-conservatives/.

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