by Joseph DeMaio, ©2021

(Feb. 23, 2021) — Yesterday, the U.S. Supreme Court seems to have crept a little closer to becoming the newest member of the Deep State cabal now “governing” the Republic.  Your humble servant has in the past noted that if Benjamin Franklin were alive today, he would be weeping at the prospect of the Founders’ hard work to create a constitutional republic being set afire. 

After yesterday’s denial of certiorari review on the grounds of purported “mootness” in Republican Party of Pennsylvania v. Degraffenreid (USSC Doc. No. 20-542) and Corman v. Pennsylvania Democratic Party (USSC Doc. No. 20-574), two cases challenging the legitimacy of the 2020 general election results in Pennsylvania – the birthplace of the Republic – Ben Franklin would be sobbing uncontrollably.  Not manly, but hardly unjustified.   

Make no mistake, faithful P&E readers, the dissenting opinions of Justices Thomas, Alito and Gorsuch, arguing that the denial of review was wrong and that review should have been granted, reveal in detail the perils awaiting the Republic if its trajectory is not corrected soon.  And if you think the first 30 days of the new administration are bad, as they say: “You ain’t seen nuthin’ yet.”

Since it takes four (4) Justices at their normal weekly conference meetings to vote in favor of granting (or denying) a petition for certiorari review, and the conference addressing the two subject cases was held last Friday, Feb. 19, 2021, one might well ask: where were Justices Kavanaugh and/or Barrett (forget about Chief Justice Roberts) when the Republic needed them most?  Huh?

The Thomas and Alito dissents are found here, beginning at p. 25.  Readers are encouraged to review the two dissents – the first by Justice Thomas, the second by Justice Alito, joined in by Justice Gorsuch – before consuming the rest of this post, because much of what follows gets a bit convoluted and the dissents provide a useful backdrop.

In the cases at issue, both dissents acknowledge that the opposing parties – the Republican Party of Pennsylvania and the Acting Secretary of State of Pennsylvania (in Degraffenreid) and Mr. Corman and the Pennsylvania Democratic Party (in Corman) – all agreed that the anomalies in the Pennsylvania 2020 general election mail-in ballot fiasco, even if addressed by a grant of certiorari review, would not have made an “outcome-determinative difference in any relevant federal election.”  Bummer.

Translation: even if the Pennsylvania Supreme Court’s extra-legislative ruling – extending by 3 days after election day the date for counting mail-in ballots, plainly contrary to the Pennsylvania Legislature’s unambiguous deadline of 8:00 PM on the election day – were to be overturned, the total vote count would not have materially altered the result in that state.  Perhaps that is why Justices Kavanaugh and Barrett joined the rest of the Court in rejecting the certiorari petitions. 

But that is not the point.  Both dissenting opinions correctly focus on the real danger presented by a refusal to grant review on the bogus claim that the matter was “moot.”  A refusal by the Court to clarify now – not later – the operational parameters under Art. 1, § 4, Cl. 1 and Art. 2,  § 1, Cl. 2 of the Constitution governing “the manner” in which a state legislature alone may prescribe how electors are to be appointed may well operate as an invitation to state judicial and executive officers to indulge in the same shenanigans which characterized the 2020 election in Pennsylvania in future elections.  Stated otherwise, if Pennsylvania “got away with it” in 2020, who is to say they won’t if given the opportunity “get away with it” again in future years? 

By analogy, because Barack Hussein Obama, Jr. successfully “got away with” masquerading as a “natural born Citizen” for presidential eligibility purposes not once, but twice, a feat seemingly repeated in 2020 by Kamala Harris as to the Office of the Vice-President, why not deem these species of electoral gambits to be the “new normal?” 

The sole and exclusive authority of the state legislatures in this regard to prescribe the “manner” in which electors for president are selected and federal elections for Senators and members of the House of Representatives are conducted under Art. 1, § 4, Cl. 1 and Art. 2,  § 1, Cl. 2 of the Constitution is specifically recognized by Justice Thomas through his citation to and reliance upon the prior Supreme Court decision in McPherson v. Blacker, 146 U.S. 1 (1892), as discussed earlier here.

The mere fact that, in the absence of a Supreme Court decision clarifying the issues, a state court or executive branch officer may feel free in the future to ignore plain and unambiguous statutory language enacted by a state Legislature – again, the branch of a state government exclusively possessed of the power to prescribe the manner of appointing electors and holding federal elections under the Constitution – merely underscores the fact that the cases were anything but moot. 

Clearly, the refusal of the Court to address the issues raised holds the potential for either state courts or state executive officers in the future to repeat the usurpations and excesses which the Republic witnessed in November, 2020.  Not good.  Then again, courage is not one of the qualifications needed to hold a seat on the Supreme Court.

Ironically, Justice Thomas notes that the Court’s refusal to grant certiorari – after all parties had originally supported a grant of the certiorari petitions well before the Nov. 3, 2020 election to clarify the protocols, which support the Democrat parties withdrew after Nov. 3, 2020 – “is inexplicable.”  See Thomas dissent at 2.  With due respect to Justice Thomas, the refusal is not inexplicable at all.   Indeed, the chronology of events is important.  In this regard, the scheduling of the conferences to be held where the question of whether review will (or won’t) be granted is normally a function of the Office of the Clerk of the Court.

However, while the Court’s protocols and rules do not specify, in so many words, when cases will be scheduled for conference, because the Chief Justice chairs these conferences and sets their agendas, it would not be anomalous to speculate that the Chief Justice – in consultation with the Clerk, of course – might “influence” which cases are scheduled for particular conference days.  See, e.g., Doctrinal and Strategic Influences of the Chief Justice: The Decisional Significance of the Chief Justice, 154 U.Pa.L.Rev. 1665, 1669 (2006) (“By controlling the conference, for example, the Chief may be able to pick the most strategic time to call a vote, such as when a swing vote appears to be leaning in the desired direction.”) (Emphasis added).  Stated otherwise, as they say: “Timing is everything.”

Normally, cases are “at issue” and thus ready for “conference” when all of the parties’ briefs have been filed and, in some instances, after all amicus curiae (“friend of the court”) briefs have been filed.  In these two Pennsylvania cases, the original petitions were filed prior to the general election, including an application for a stay filed Sept. 28, 2020 in Degraffenreid (Doc. No. 20-542).  In both the Degraffenreid and Corman cases, certain amici curiae briefs had been proffered to the Court, both supporting the granting of certiorari.  No ruling on the filing of these briefs was made until yesterday.

The amicus curiae brief of the “Honest Elections Project,” specifically urging expedited review, was filed on Oct. 26, 2020 (Degraffenreid) and the amicus curiae brief of the “White House Watch Fund,” also urging the grant of certiorari, was filed Nov. 30, 2020.   Note, faithful P&E readers, that all of these dates are well before the Jan. 6, 2021 convening of the Joint Session of Congress where the final counting of the 2020 general election Electoral College votes was to take place.  Oh, and by the way, not that it made any difference in the ruling, leave to formally file both amicus curiae briefs was granted in the same Feb. 22, 2021 order of the Court denying certiorari.  All tied up in a neat bow.  

An argument can be made that, given the stakes at issue, it would have been nice to have had a Supreme Court ruling on the issues presented in the two cases before Jan. 6, 2021.  Things might have unfolded differently.  Had the justices’ conference been scheduled earlier…, say in November 2020, December 2020 or sometime prior to Jan. 6, 2021 (or even before the date of the inauguration, Jan. 20, 2021), there might well be a different person residing at 1600 Pennsylvania Avenue right now. 

However, because the conference was not held until Friday, Feb. 19, 2021, with the decision denying certiorari handed down the following Monday, Feb. 22, 2021…, well, that’s just how the cookie crumbles.  Now, the Goofball-in-Chief occupies the Oval Office and a likely ineligible Vice President lives at the U.S. Naval Observatory.  How convenient.  Again, timing is everything. 

Finally, the Alito/Gorsuch dissent notes that, because the cases were “not moot,” and because there existed a “reasonable expectation” that the parties “will face the same question in the future,” the denial of certiorari will likely generate a high likelihood that “the question will evade future pre-election review, just as it did in these cases.”  See Alito dissent at 4.

The “evasion” of pre-election review of difficult or controversial issues is increasingly becoming a hallmark of Supreme Court “jurisprudence.”  As noted by Justice Thomas when testifying to Congress many years ago, he commented that the issue of presidential eligibility as a “natural born Citizen” was one which the Court “was evading.” 

It is interesting that Justice Thomas, in explaining why the Supreme Court has not yet taken up an “eligibility” case on the merits, would select the term “evading” as opposed to “avoiding,” since the prior term suggests a conscious decision to “avoid facing up to” a difficult or known obligation.  

Again, courage is not a component of character required to become or remain a Supreme Court Justice.  The dissenters here have the courage which seems to be missing elsewhere.  Is this a great country, or what?

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  1. Thank you Mr. DeMaio; an excellent read! Let me preface my statements by saying that I am an extremely angry and frustrated American!
    Justices Alito and Thomas are men of integrity,principles, uncommon sense and courage; sometimes. Their dissents in this case were spot on. The SC ignominiously blew the opportunity, both pre and post election, to clarify and confirm the Constitutiontional Right of state legislatures to regulate election/ voter policies in their respective states. The SC has finally lost all pretense of being unbiased, objective, and honest. To date, the SC has a chronic and shameful record of dodging, ignoring, even manipulating real and urgent issues (eligibility?); it rarely fails to surprise and disappoint, to trip over its silly robes to try and salvage a tattered reputation. It has earned “the jaundiced eye”. Personally, I have lost all confidence in the SC, and in our elections; they are not dependable, they are not secure. This situation is untenable. Ignoring and/ or denying it is an immature and adolescent approach. The SC’s decision serves only to inflame the issue further. It encourages the perpetrators of these voter fraud crimes to continue their deceit; and with a wink of the eye it acknowledges and green lights the burgeoning despotism of the Democrats, the Rhinos, the Deep State and all their global accomplices. The ineptitude of the Court coupled with the volatile political climate, could potentially devolve into a dangerous environment of civil unrest, even civil war! The aforementioned are obliviously putting themselves and us in peril! This situation demands that the state legislatures stand up, grow a spine, and assert their rights to fashion election policies; to stop kicking the can into the courts to resolve issues they were voted to resolve, and paid to do so. Their impotence is an miserable excuse to avoid their responsibilities. They are ridiculous! Their constituents must hold them accountable for shirking their duties.
    Finally, in my opinion, the SC is compromised, no doubt! It’s becoming more and more apparent that We the People have no recourse except, to take matters into our own hands. All avenues of redress have been exhausted; our opponents give us no compromise, no quarter! What do we do next? The Left and their minions fight dirty! Let’s fight fire with fire! Let’s confront them with their own devious and underhanded tactics! We must take them on voraciously, or they will win!!!

  2. Scotus went communist 7 to 2 with Texas. We must do it ourselves. Oregon has found a way.
    All power is inherent in the people
    We are the Oregon Statewide Jural Assembly. Our 2nd amendment well regulated Militia on Oregon cured on January 29, 2021. We meet on Skype most Mondays at 7:00PM. You will be notified. Our function is to return Oregon to a Constitutional Republican form of government thru a grand jury process. Following is a five-minute read. Then there are some attachments. We are seeking grand jury/trial jury members to take these ogres to trial.
    Briefly: We are in a benevolent, predatory, form of martial law from DC/United States* incorporated governance in some form since 1861. It’s Name is the Lieber Code from Lincoln’s Executive Or- der 100 in color of law. We had a Constitutional Republican form of government from 1819 to 1860 or 1861. From 1776 to 1819 it was changing from an overthrown Monarchy. Most of the “people from 1776 to 1819 the people at large” were not convinced for a long time. There really is an active conspiracy, the industrial/milit- ary/judicial/legislative/executive/banker/ BAR/royalist/communist/Muslim/Georgia Guidestone complex.
    This does not involve the true Constitutional Republican form of government on each of the several states. As long as there are still “people”- that is the body, mind, spirit as juxtaposed to “person,” the ALL-CAP NAME corporate fiction – all power is inherent in the people.
    Rather than being subdivisions of the US, INC., each state is an autonomous Nation, each with its own Constitution! All power is inherent in the people. The number of people is not specified and a majority is not required as we are not a Democracy. The several states of the Union are the creator party to “The United States of America’s Constitution.” The “people at large” are beneficiaries. The “people at large” are the creator party to their state’s Constitutions.
    The STATE OF OREGON’s incorporated governance is color of law. Operated by the Salem oligarchy, aka Kate Brown et al, which is a subdivision of the DC/United States* as originally incorporated during Lincoln’s era. I think each STATE OF THE OTHER 49 is about the same. A little more carrot or a little more stick.
    To remove the Lieber Code/martial law the method is clear and written down by the de facto. The Lieber code of Lincoln’s EO 100 is nullified by a civilian court on the land. So says SCOTUS Ex parte Milligan. There was no — none, zero! — Civilian courts on the land of Oregon. Until ours. I was told there is one on Texas, one on Philadelphia and one on Georgia. I have been unable to prove this. I do know there is no Article III court that will claim original jurisdiction. They have acquiesced to “we, the people, must do it ourselves.”
    The Army Heritage Center 717-245-3972/3949 verified the Lieber Code was updated and still in effect in 2015. No known changes since then. The Judge Advocate General attorney, acronym JAG, knew exactly what I was talking about.
    A method of returning Oregon to a Constitutional Republican form of government was/is: We assembled our 1st amendment Oregon Statewide Jural Assembly 3 years ago. We notified the DOJ, USMS, FBI, 36 Sheriffs, 30 Senators, A.G, governor, Secretary of State lawfully and none rebutted our claim. They all acquiesced and defaulted.
    We formed Article 1, Section 1 of Oregon’s Constitution and in- formed all the same ones. We formed our civilian court of record and informed all the same ones. Through Ex parte Milligan’s authority we nullified Lieber Code/martial law. Not one rebuttal.
    We informed the Oregon National Guard/Oregon Organized Militia’s JAG and they are not happy and have talked back and hung up. We are awaiting an appointment with their Commanding General Michael Stencel.
    We have formed a 50 member Grand jury pool and trial jury pool of Oregonians, Join us we are growing. — non-US citizens — to bring forth true bills against the ogres on Oregon. Then we implement Article III, Amendment VII court. This is a template for the other states.
    Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a landmark decision of the US Su- preme Court that ruled the application of military tribunals to citizens when civilian courts are still operating as unconstitutional. In this particular case, the Court was un- willing to give President Abraham Lincoln’s administration the power of military commis- sion jurisdiction, part of the administration’s controversial plan to deal with Union dis- senters during the American Civil War. Justice David Davis, who delivered the majority opinion, stated that “martial rule can never exist when the courts are open” and confined martial law to areas of “military operations, where war really prevails”, and when it was a necessity to provide a substitute for a civil authority that had been overthrown. Chief Justice Salmon P. Chase and three associate justices filed a separate opinion concur- ring with the majority in the judgment, but asserted that Congress had the power to au- thorize a military commission, although it had not done so in Milligan’s case.
    The landmark case stemmed from a trial by a military commission of Lambdin P. Mil- ligan (for whom the case is named), Stephen Horsey, William A. Bowles, and Andrew Humphreys that convened at Indianapolis on October 21, 1864. The charges against the men included, among others, conspiracy against the U.S. government, offering aid and comfort to the Confederates, and inciting rebellion. On December 10, 1864, Mil- ligan, Bowles, and Horsey were found guilty on all charges and sentenced to hang. Humphreys was found guilty and sentenced to hard labor for the remainder of the war. (The sentence for Humphreys was later modified, allowing his release; President An- drew Johnson commuted the sentences for Milligan, Bowles, and Horsey to life impris- onment.) On May 10, 1865, Milligan’s legal counsel filed a petition in the Circuit Court of the United States for the District of Indiana at Indianapolis for a writ of habeas corpus, which called for a justification of Milligan’s arrest. A similar petition was filed on behalf of Bowles and Horsey. The two judges who reviewed Milligan’s petition disagreed about the issue of whether the U.S. Constitution prohibited civilians from being tried by a milit- ary commission and passed the case to the U.S. Supreme Court. The case was argued before the Court on March 5 and March 13, 1866; its decision was handed down on April 3, 1866.
    Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lin- coln, 24 April 1863. Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Or- ders No. 100, Adjutant General’s Office, 1863, Washington 1898: Government Printing Office.
    Article I Section 1 of Oregon’s Constitution Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inher- ent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper. —
    *See (8) The United States is located in the District of Columbia.

  3. Thank you for that article, and especially for mentioning presidential eligibility.
    The key to revealing the panic of the Deep State/Swamp after the election of Donald Trump is acknowledging the many complicit in The Obama Fraud, including the courts themselves and the Obama media must now protect the lies they spread concerning eligibility and continue to evade the issue to protect themselves. Those complicit in The Obama Fraud, both parties, effectively gave America’s government and her military to her enemies. They will never admit they were horribly wrong in ignoring the obvious…..even as they watch America being destroyed.
    This was never complicated, just too big to prosecute, and even too big to openly and fairly discuss………….Courts say; “no standing, evidence moot because it was submitted too early…or too late”, or whatever it takes for them to continue their evasion. It doesn’t help that two of the Supreme Court Judges were installed by an ineligible pResident, Barack Hussein Obama……Unfortunately, it also seems two Trump appointed Judges got themselves appointed to continue the “evading” of Constitutional eligibility, which Justice Thomas mentioned……..doing so would reveal Obama’s usurpation and that of Kamala Harris…something the Supreme Court will never do………Goodby America…………
    The answer to the question of your last sentence is “what”……………….