3 Liberal Supreme Court Justices Recuse Themselves in Lawsuit Over 2020 Election Case

Justices of the U.S. Supreme Court pose for their official photo. Front: Justices Sonia Sotomayor (L) and Clarence Thomas (2nd L), Chief Justice John Roberts (C), Justices Samuel Alito (2nd R) and Justice Elena Kagan (R). Back: Justices Amy Coney Barrett (L), Neil Gorsuch (2nd L), Brett Kavanaugh (2nd R), and Ketanji Brown Jackson (R) at the Supreme Court in Washington, on Oct. 7, 2022. (Olivier Douliery/AFP via Getty Images)

In a rare move, all three liberal Supreme Court justices recused themselves on May 28 from a case involving a lawsuit filed against them for rejecting a previous lawsuit that sought to overturn the results of the 2020 presidential election.

In the case, the Supreme Court turned away a longshot bid by Raland J. Brunson of Ogden, Utah, who has gained notoriety among Trump supporters for his legal activism.

The case at hand is Brunson v. Sotomayor. The petitioner sued Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in their official capacities for voting on Feb. 21, 2023, to deny the petition for certiorari, or review, in his previous lawsuit, Brunson v. Adams.

The three Democrat-appointed justices recused themselves, citing judicial disqualification mandates in the U.S. Code and the Code of Conduct for Justices of the Supreme Court of the United States, which the nation’s highest court adopted in November 2023.

In Brunson v. Adams, Mr. Brunson sued hundreds of members of Congress in 2021, claiming that they violated their oath of office by not investigating election fraud in the 2020 election and by certifying the election victory of then-challenger Joe Biden over then-incumbent President Donald Trump in a vote that concluded in the early morning of Jan. 7, 2021, following the U.S. Capitol breach.

Rep. Alma Adams (D-N.C.) appears in the short title of the petition filed in the appeal because she was named first in the list of 388 respondents. Also included as respondents were President Biden, Vice President Kamala Harris, and former Vice President Mike Pence. The lawsuit sought the removal from office of President Biden, Ms. Harris, and the members of Congress.

In the unorthodox lawsuit, Mr. Brunson argued that avoiding an investigation of how President Biden won the election “is an act of treason and an act of levying war against the U.S. Constitution which violated Brunson’s unfettered right to vote in an honest and fair election and as such it wrongfully invalidated his vote.”

In that appeal, the Supreme Court denied the petition for certiorari, or review, in an unsigned order on Jan. 9, 2023. No justices dissented. No reason was provided for the decision. At least four of the nine justices have to vote to approve a petition for certiorari for it to advance to the oral argument stage.

The court denied a petition for rehearing on Feb. 21, 2023, in an unsigned order without providing a reason. No justices dissented.

This week, the Supreme Court denied the petition for certiorari in Brunson v. Sotomayor in an unsigned order without providing a reason. No justices dissented, but Justices Sotomayor, Kagan, and Jackson did not participate in the ruling.

The petition had been docketed with the high court on March 29, with Mr. Brunson serving as his own counsel.

Mr. Brunson argued in the second lawsuit that the justices violated their judicial oath in Brunson v. Adams.

The lawsuit began in state court, but the justices as federal officers had the case removed to federal district court.

The district court found that the state court lacked jurisdiction in the suit, holding that the official capacity claims against the justices were tantamount to claims against the United States, which enjoys sovereign immunity. Sovereign immunity is the legal doctrine that the government cannot be sued without its consent.

The district court determined that the state court lacked jurisdiction and that the district court therefore lacked derivative jurisdiction because of the official capacity claims triggering the justices’ sovereign immunity.

The district court dismissed the action, finding that the justices enjoyed immunity.

Mr. Brunson appealed to the U.S. Court of Appeals for the 10th Circuit, arguing that even if derivative jurisdiction had been required, the state court still retained jurisdiction because the doctrine of sovereign immunity runs afoul of the First Amendment’s right to petition for redress of grievances.

On Feb. 9, the 10th Circuit dismissed the appeal.

In the Supreme Court proceeding, U.S. Solicitor General Elizabeth Prelogar, functioning as attorney for the justices being sued, waived the federal government’s right to respond to the petition in the Supreme Court in a document that was docketed on May 2.

Mr. Brunson argued that the three justices violated their oath of office “by giving aid and comfort to enemies of the Constitution, which is an act of treason, fraud and a breach of contract.”

He urged the Supreme Court to grant his petition, alleging the justices were guilty of “fraud, violations of the Oath of Office and ... treason.”

“These serious offenses need to be addressed immediately with the least amount of technical nuances of the law and legal procedures because these offenses are flowing continually against Brunson’s liberties and life and consequently is ... a continual national security breach,” the petition read.

“Seeking a redress of grievances, as Brunson has done herein, is a great power one retains to protect himself from the encroachment of a tyrannical government.”