Justice Devine’s political speech crosses the line
Toward the end of his biennial State of the Judiciary address before the Legislature last year, Texas Supreme Court Chief Justice Nathan Hecht returned to one of his favorite topics: judicial independence.
“I grow concerned that political divisions among us threaten the judicial independence essential to the rule of law,” Hecht said, adding that the political pressure on judges to take a side — left or right — “destroys the rule of law essential to justice for all.”
While Hecht didn’t name names, this particular section might as well have been dedicated to his own colleague on the state’s highest civil court, Justice John Devine.
Devine, who has served with Hecht on the all-Republican Supreme Court since 2013, doesn't seem to share the chief justice's concern. Last week, the Texas Tribune reported on an audio recording it had obtained of a speech Devine gave to a group of voters in East Texas in September in which he blasted his colleagues as “brainwashed,” asserted that the state’s highest criminal court, the Court of Criminal Appeals, is controlled by “RINOs” and “trans-Republicans” and accused Harris County Democrats of trying to “bastardize our election code” to steal elections.
For a Republican political candidate in Texas, such a diatribe is, sadly, par for the course. For a sitting state Supreme Court justice, it’s a disgrace. Specifically, it’s an egregious display of partisanship, flagrantly disregarding the ethical standards by which every judge in Texas is expected to abide. This latest revelation only cements our belief that Devine is a danger to an embattled judiciary already struggling to maintain the public’s trust.
Voters are the only true check on Devine’s authority. Republicans have a chance to decide his fate in Tuesday’s primary. We’ve already made our position clear, endorsing his opponent, Brian Walker, a qualified judge who sits on the Fort Worth district court of appeals.
Yet even if Walker is successful, Devine would remain on the bench until his term expires in December, bringing his openly expressed political bias to many cases in the coming months. Every Texan, regardless of political ideology, should be concerned about the consequences of that. The Texas Code of Judicial Conduct expressly states that judges "should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Devine's comments clearly violate this provision. We urge the State Commission on Judicial Conduct to sanction him for misconduct. Though he'd remain on the bench, such a step would send an important message to the public and other judges. Over the course of his judicial career, Devine has never been shy about pushing his own political agenda. During his 2012 Supreme Court race, he boasted that he had been arrested 37 times while protesting abortion clinics, even though he likely would hear abortion-related cases. As a Harris County district court judge, he refused to remove a painting of the Ten Commandments from his courtroom, and referred to the concept of church-state separation as a “myth.” He launched his 1996 Republican congressional campaign from his chambers, which resulted in a sanction from the Commission on Judicial Conduct. In 2002, he was criticized by the Texas Ethics Commission for not disclosing on his financial forms dating back eight years that he was president of a real estate company.
In 2022, then-Justice Devine failed to recuse himself from a sex abuse case the state Supreme Court heard against former Southern Baptist Convention leader Paul Pressler, even though Devine worked at Pressler’s law firm at the time the alleged abuse occurred.
Devine has also skipped 60% of oral arguments this term, while every other justice except for one had perfect attendance. Devine claimed the absences were necessary to campaign for reelection.
Whether the State Commission on Judicial Conduct sees Devine’s public comments as worthy of sanction is unknown. Jacqueline Habersham, the commission’s executive director, declined to say whether a complaint had been filed against Devine. Yet Habersham also told the editorial board that a formal complaint is not required to open an investigation into a sitting judge.
“If the commission wanted to initiate a complaint based upon a news article, that’s within their discretion, we just need to have something in writing to base it on,” Habersham said, adding that in cases involving speech, the commission would weigh the ethics of the speech’s content against a judge’s First Amendment rights.
We believe Devine’s comments cross that line. While Texas has partisan judicial elections requiring a judge to run for the bench as a member of a political party, the vast majority of judges across the state refuse to engage in tribalist party politics. Devine’s pattern of unethical behavior should be unacceptable to any Texan who still values fairness in our judges. Devine wants it both ways: to be a loyal Republican crusader and also neutral arbiter of facts and the law. It doesn’t work that way.
At least, it shouldn’t. Not even in Texas.
Commission should censure his partisan behavior, absences