by Mary W Maxwell, LLB
Editor’s Note: In her 24 February 2023 article, Mary Maxwell created a make-believe Supreme Court ruling in the Brunson case. She played the role of Chief Justice Jane Doe. Now she offers a dissent in which she writes as “Justice Henry Doe.”
The United States Supreme Court
Petitioner Raland Brunson v Respondents Alma Adams et al
Dissent to the ruling dated “March 21, 2023”
Justice Henry Doe, with whom Justice Jeffrey Doe joins, dissenting
The majority opinion contains three flaws: 1. Its move to revive the Court of Equity is good but does not go far enough; a special master should be appointed to look into the allegation of an internal enemy and treason. 2. The time has come to discuss directly the way in which facts are precluded if they smack of ‘conspiracy theory.’ 3. There is a need for sua sponte correction of some of our past errors, including our decision to dismiss for lack of standing the voter-fraud case brought to us by Texas in 2020. Because of these flaws, I respectfully dissent.
Flaw 1.
The majority has correctly recognized the condition of disuse into which Equity has fallen, aside from bankruptcy courts. Equity can be used effectively for this case, in which the Petitioner is Citizen Brunson, and the Respondents are 385 members of Congress plus President Biden, Vice President Harris, and former Vice President Pence.
Whatever be the history of Equity, starting in England at the time of the Peasant Revolt, it is a legitimate method of bringing justice. Any method to bring justice is inherently “legitimate.” The Biblical book of Leviticus says “And a man who injures his countryman – as he has done, so it shall be done to him…. Just as another person has received injury from him, so it will be given to him. An eye for an eye, a tooth for a tooth.”
I don’t mean that its inclusion in Holy Scripture gives it authority; the earlier Code of Hammurabi, which was secular, said the same thing. I mean justice is something unto itself and is not limited to what has been developed for purposes of courts. Justice is justice. I wear the name “Justice Henry Doe” and this brings overwhelming responsibility. The people see me, and the eight others, at this High Bench and assume we have extraordinary powers to help them obtain a just settlement of their complaint.
One must ask where these powers came from. They originally came from the king’s power, in England. He had courts which produced common law; those courts traveled to England’s colonies and became part of the governing authority of the various governors. Some of those were ‘company’ governors, attending to trade; presumably their holding of “a justice portfolio” was incidental. Yet it worked, most likely because humans see the leader as being the person to turn to in time of trouble or dispute.
My role at this particular High Bench is not to solve any and all problems. We act under a very limited mandate that was laid out in the United States Constitution, ratified in 1788. Article III, section 1 of the Constitution says: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article I, section 2 says: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made…”
Although there should not have been a need for a national court, other than to enforce matters that are strictly national, nevertheless it happened that a “Supreme Court” was set up to be one of the three branches of the new federal government. It must participate in keeping the Constitution in good health. In 1868, in the aftermath of the Civil War, a Fourteenth Amendment was, controversially, added. It says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” This makes our bench the final arbiter even over the courts of the states, if their rulings concern people’s constitutional privileges or immunities. Petitioner’s case started in Utah, but in federal court, not in a state court.
Some people think we justices are the law of America, but are we? Our power “shall extend to all Cases in Law and Equity, arising under this Constitution” and to all Congress-made law. So at least one can say that the High Bench does not have responsibility for the nastiness of a neighbor who blocks your driveway. But it certainly does include the complaint of the Petitioner, who feels that his vote was taken, or somehow devalued, by cheaters. Voting for political leaders is basic to our government, so it is not possible for us to wash our hands of any connection to the matter, even given our carefully limited jurisdiction.
The 385 congresspersons are alleged by Petitioner to have erred by not investigating a fraud, which, he claims, their oath of office obliged them to do. And Vice-President Mike Pence, in his role as president of the Senate is alleged to have failed to withhold certification of the Electoral ballots. It is not clear what offense Biden and Harris are accused of. Harris was a sitting senator, when the alleged offense of failing-to-investigate occurred in December 2020, and did not become Vice President until Inauguration Day, January 20, 2021.
Is it a criminal case? To cheat Brunson of his vote, indirectly, by devaluing it nationally, is not a crime on the books. Still, he makes accusations of crime, by 388 persons. Petitioner states: “It is an uncontestable fact that the Respondents committed fraud and treason breaching our national security … thus adhering to [a] domestic enemy that continues to breach our national security at an alarming rate on a daily basis.” Brunson is incorrect in saying it is an incontestable fact. He also does not seem to recognize that all accused persons are entitled to due process, or that conviction for a crime will occur only if a jury finds that the elements of the crime, including intention, were met. He points to the following phrase in Article VI as evidence of the Respondents’ guilt: “The Senators and Representatives … and all executive and judicial Officers, …, shall be bound by Oath or Affirmation, to support this Constitution.” Indeed Brunson goes in circles, taking phrases from the Constitution and then asking us to remove 388 people from office.
But the dilemma is: Where can any citizen take his or her stolen-election complaint? The Framers of the Constitution distinctly made the electing of a president a matter for the states: Article II, section 1 apportions the number of Electors according to the population of their congressional districts, and authorizes state legislatures to direct the manner of appointing their Electors. The Framers did not foresee any ‘national’ elections, such as we now hold in November; they saw only the low-key meetings in the electoral colleges. Granted, there was always some role for Congress to play if no candidate got a majority — Congress’s state delegations, each having one vote, could choose the president.
But in January 2021 it fell to Congress, when counting the incoming ballots, to pause and vote on some that appeared questionable. The way to do this had been legislated for; it appears in 3 USC 15, and it was followed strictly on January 6, 2021, even after the trauma of that day which included the death of a protestor. A few Representatives and Senators announced their complaints about a few states, the proper debate was held, and in no case was there a majority asking for ballots to be rejected. Hence, Biden won the presidency. That does not mean that no cheating occurred at the polls. Many people have produced affidavits saying that they witnessed cheating. They went to various courts to complain but no such case got adjudicated. Media often reported that such cases was “lost” when in fact they were dismissed. This misled the public to think a court had looked into the voting and found it clean.
Arguments, sometimes very emotional, about the 2020 election are part of the reason for American’s nervousness today; people get the message that a government will do as it pleases. And it needs to be said also that members of the Blue Party or Red Party each think the other is a den of iniquity. The Reds think that the apparatus of a so-called ‘Blue state’ won’t preserve the law but will be partisan in its handling of a complaint. This is a dreadful situation for everyone. Brunson wants to speak for them. I say we cannot ignore him.
Granted, the judiciary’s duty to uphold the Constitution includes staying in our assigned role and not grabbing turf from another branch or from the states. But what if another branch is acting ultra vires? Or is visibly corrupt? What if a problem has no workable solution? In 1863 Abraham Lincoln signed an Emancipation Proclamation, saying slaves were no longer slaves. He had no authority to do that, but it is generally thought that he was right to do it.
In 1942, President FDR had written EO 9066 ordering martial law on the West Coast after the Japan’s attack on Pearl Harbor. Congress agreed to the lockdown of Japanese Americans. In 1943, Chief Court Justice Stone, wrote the opinion in Hirabayashi v United States approving of an American-born man’s conviction for disobeying the curfew. In a concurrence, Justice Douglas wrote “If the military were right in their belief that that among citizens of Japanese ancestry there was an actual or incipient fifth column, we were indeed faced with the imminent threat….”
Analyzing this in his 2019 book Reconsidering Judicial Finality, Professor Louis Fisher asks: “If? Belief? Courts are expected to operate on the basis of independent judgement and reliable evidence, not suppositions, claims, and beliefs.”
Without doubt, Petitioner’s case is hard for us to find a neat answer for. Brunson has a huge number of supporters all of whom are hoping the courts can address the wrongdoing. It will not be possible now to re-count all the November 2020 votes, and technically there is no way to restore Brunson’s right to influence that election, even if he could prove that his vote lost its influence. But because it is difficult does not mean we can walk away. I would have this High Bench appoint a special master to gather more knowledge of the 2020 election, and knowledge of the alleged enemy. For us not to do so would border on misprision. The special master will have the power of subpoena, and the normal court prerogative of issuing a bench warrant if someone who appears before it appears to be indictable for crime.
[Reminder, the person writing this ‘Dissent’ is not a real member of the US Supreme Court. It is Mary Maxwell, posing as Justice Henry Doe in order to play with some ideas in this very complicated and important case.]
Flaw 2.
To repeat, the Constitution has burdened our Bench with judicial power “in all cases in law and equity arising under this Constitution.” Courts of Equity can design a constructive remedy to make justice happen, but the remedies suggested by this court’s majority are too weak, asking Biden to resign voluntarily. Petitioner Brunson has said that he wants to get people removed from office because they allegedly violated their oath of office by ignoring election fraud complaints. But he also accuses them of treason on the grounds that they “adhered” to an enemy. That sounds like conspiracy theory, and most people, upon hearing a conspiracy, cancel it from their brain.
We need to face that fact on its own. “Polite people” might stay away from hearing about those things and thus miss out on a lot of truth. The assassinations of President Kennedy in 1963, President Lincoln in 1865, and Martin Luther King in 1968, are all treated as having been done by lone nutters. But anyone who studies it will realize it was a coup d’etat in each case. King’s alleged killer James Earl Ray was already exonerated in a court case, at which media was conspicuously absent. A Congressional committee in 1992 found the JFK and MLK deaths to have been likely done by a conspiracy. Clearly someone has a lot riding on hushing up the likelihood of coup d’etat.
I ask if we SCOTUS justices have a duty to follow up on Petitioner’s hint of criminality. What if there really is an enemy tampering with our elections? The United States itself is known worldwide as an expert tamperer with foreign elections. Indeed when we don’t like the person who emerges as a popular candidate abroad, we openly support his opposite number. Thus there is no reason to play at the game of “This can’t happen.” And if the United States becomes the victim of it, who holds the portfolio to deal with this? Brunson boldly insists that his constitutionally guaranteed way to get satisfaction is to throw it in our lap. I now open that for discussion.
The label “conspiracy theorist” has been a very effective way to silence citizens by indicating that they are paranoid or silly. Per the Merriam Webster Dictionary, the definition of conspiracy theory is: “A theory that explains an event or set of circumstances as the result of a secret plot by usually powerful conspirators.” Since there are now many individuals with extreme financial power, it would be almost necessary for them to conspire with others to accomplish what they want, quietly. They would engage in “secret plots.” This is standard. By labelling citizens conspiracy theorists, however, it sounds like they are unworthy of responding to. It’s as though their story could not possibly deserve a hearing.
We are guilty of that in American courts. Consider the official story of what happened at the Pentagon on 9-11. There are no photos of the plane, Flight AA 77, that allegedly hit the Pentagon. The named pilot Hani Hanjour was not capable of piloting a jet. The video from numerous security cameras are not shared with the owners of the Pentagon, namely, the citizens. Pentagon chief Donald Rumsfeld gave conflicting statements as to his whereabouts at the time. So it is not a stretch to say there may be something underhanded here. A soldier, April Gallop, came to US District court to say that she was there, with her son, to put him in the Pentagon Daycare Center, and he got hurt by the attack.
She sued but was dismissed and so we did not benefit from Discovery. Her attorney William Veale was disciplined and fined $15,000 for abuse of process. I believe that itself is abuse of process. Who will pay for this breach of judicial ethics? Who will make good to April Gallop the damages she suffered? US District Judge Denny Chin dismissed Gallop V Cheney — probably because the conspiracy aspect is ‘unacceptable.’Another unethical aspect of judicial handling of the 9-11 matter is that all litigants are required to file their claim at just one court, namely the US District Court for the Southern District of New York. We cannot allow this to continue. As the maxim says, qui non improbat approbat — who does not disapprove, approves.
Recent acknowledgement of our government coordinating censorship of the Internet is a good indicator that things are rotten in the state of Denmark. The Executive branch went to the tech giants such as Twitter and Facebook and told them to limit free speech. Our branch played its part by not responding in courts to parents who have been branded as terrorists for having attended a school board meeting to demand, say, supervision of the curriculum for their child.
The corollary of this censorship is the production of fake news and propaganda such as “The Covid Vaccine is safe and effective” when it was not even safety tested. Could this mean that we have an enemy within? Yes, logically one would deduce that. As for political propaganda, there used to be the Smith-Mundt Act of 1948 to prevent the government from propagandizing the citizenry. That protection disappeared when someone in Congress slipped a modification into the National Defense Authorization Act of 2012 that deleted Smith-Mundt.
Thus, Brunson’s case, which already has massive publicity, would be a good opportunity for us to drop the unspoken barrier against plaintiffs’ bringing evidence of government malfeasance. The Framers were famously aware that government malfeasance is inevitable, and copious, so designed ways to stave it off. Certainly this includes the provisions of the Constitution that assure each person that he or she can get justice though the courts. They also gave us specific protections against corruption, such as in the requirement that a judge’s pay not be lowered during his term of service — as he thus will not be tempted to adjust his rulings to please the paymaster. And in that regard, I recommend that we establish a mechanism whereby we are inspected by citizens. The Judicial Conference, presently the only body that would discipline us, is headed by our own Chief Justice Jane Doe. As the maxim says, Nemo judex in causa sua — no man can be the judge of his own case.
In short, I dissent from the majority’s neglect of the major issue in the Brunson case, namely: was the 2020 election rigged and if so was it by an enemy? And if so, who is that enemy? We simply cannot drop the ball. It is our responsibility to let Discovery happen. The nation can only gain from this.
Flaw 3.
It is time for us to be pro-active in confessing previous wrong decisions and changing them sua sponte. An example might be the 2003 case Eldred v Ashcroft, which extended copyright of old works up to 100 years. Plaintiff’s attorney Lawrence Lessig argued that the Copyright Term Extension Act, sarcastically called the Mickey Mouse Protection Act, is unconstitutional. Article I, section 8 says authors should receive royalties “for a limited time.” It also says the point is “to promote the Progress of Science and useful Arts” — that is, encourage an author to do the work by a payment, and later everyone can enjoy it for free. A good reason to change our decision and reduce the number of years, is that everybody knows it was done for Disney
It is urgent that we express some regret for having dismissed Texas v Pennsylvania et al. The state of Texas asked us to rule that the electoral ballots form Georgia, Michigan, Pennsylvania, and Wisconsin. Seventeen other states came in as amici curiae to support Texas’s case. We gave an unsigned dismissal: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.
President Trump tweeted “The Supreme Court really let us down. No Wisdom, No Courage!”
Everyone knows, too, that we must undo the damage we did in Citizens United when we gave corporations a practically exclusive way to control who gets elected, by allowing unlimited campaign donations. Every such breach of our duty to uphold the Constitution has lethal consequences. People would be elated if we came down off our high horse and reversed some unworthy decisions. What does it profit us to be seen as causing harm rather than help to the beloved parchment?
In sum, we must focus on the future and on the task of rescuing the nation. Action by us can be justified by the current impasse and society’s distress. My three recommendations, within the context of a constructive remedy in Equity for Brunson’s case, are: to look further into the matter of an enemy-driven coup d’etat by appointing a special master, to establish a mechanism beyond that of the Judicial Conference for inspecting SCOTUS, and to produce some sua sponte reversals of our past decisions.
I respectfully dissent.
Update on November 9, 2023: The author had incorrectly stated that Kamala Harris was a senator on January 6. No, the 117th Congress had ended on January 3, 2021.
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