Advisory Opinions - Two Bronze Doors

Episode Date: July 21, 2023

Sarah and David reach peak AO and fulfill their promise of delivering something stratospherically nerdy. Judge Charles Eskridge for the Southern District of Texas has written a 56-page history of the Supreme Court building... and specifically its 17-foot, 13-ton bronze doors. Judge Eskridge tells the story depicted on the door's eight panels and what it says about our history of ordered liberty. This episode is sponsored by FIRE. FIRE's mission is to safeguard and uphold the right of all Americans to freedom of speech. Be a part of the front line of a growing movement by joining the FIRE Update. Show Notes: -“We’ll Be Back” performed by Judge Eskridge and Judge Elrod -Judge Eskridge’s publications -Where Judge Eskridge’s Bronze Doors Paper will be published Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgerd. That's David French. And we promised you something special, something nerdy. And I think you will agree that we're about to deliver in big, big ways. For any of you who have ever met Judge Charles Eskridge, we're going to hit peak AO today. And I'll tell you why. It's because he has just written, I don't actually even know quite how many pages it is, many, many pages about the two bronze doors that are in the front of the Supreme Court.

So we're going to just talk about two doors for as long as we possibly can. It is really interesting. But I'll tell you, he also runs a class. He used to be a professor at Pepperdine University, still teaches, and his class is a fascinating one. It's on the origins of the federal constitution. So we may get to that, but frankly, when the origins of the federal constitution are the less nerdy topic, that's really telling you something about where we've come, David, in our journey. You know, it really is. I mean, we're reaching new heights. journey? You know, it really is. I mean, we're reaching new heights and, and I have to, I have to confess when I initially received my reading assignment, uh, of reading about the bronze doors. 56 pages. I just looked up exactly the page count.

My PDF only says, well, that's right. Cause with the end notes, 56. Yeah. So we're going to spend most of the time in the end notes. Just so people know. So when I received my writing assignment, I mean, reading assignment, I thought I could see that in a thousand words, you know, I could see that not quarter book length. And then, and then I started reading and I couldn't stop. You can't put it down. It's a page turner. I had the exact same experience. Once you're in it,

you're in it. Yeah, absolutely. So I'm excited about this discussion. It's a walkthrough the history of English and American law that, and well, not English and American, Greek, Roman, English, American. I mean, it's really something else. But before we dive in, we got to more properly introduce our guest. Okay. Judge Charles Eskridge is a federal district judge in the Southern District of Texas. He served as a law clerk to Justice White during the October 1991 term. I have no idea why he wanted to age himself so specifically, um, in, in his own footnotes here. Um, but he is just well-known throughout, I mean, not just Texas, but very well-known in Texas. He was an incredible, uh, practicing trial attorney in Texas, a professor

at Pepperdine university. And he's bringing all of those skills, the practice, the academia, the judging, all into these two bronze doors. Judge, welcome to the podcast. Thank you very much. I'm so glad to be here, and I will devote the balance of the hour trying to live up to what has just been said about the bronze doors. It's incredible. Okay, we have to start from the beginning. How'd you get this idea? It largely, well, two things. One was from my clerkship with Justice White, and the bronze

doors are there. They're quite beautiful. They're extraordinary when you see them and stand before them. I mean, 17 feet and very detailed, eight very detailed panels. And it's not apparent when you look at them what the stories are. And so looking at them, I was like, what's going on on these doors? Nothing had really been written. David, maybe something around a thousand pages had been written, but not very much. It was just sort of like, here's, you know, the year and the persons that are supposed to be in it, but not an explanation for why they got picked. And so I was fascinated in that. I'd never seen anything that had been written up on it. And Sarah, you mentioned my class on origins of the federal constitution.

Some of those things, some of these historical references we do touch on in my class. historical references we do touch on in my class. But more than that, it's just been, I'm interested in things historical about the law, the significant moments that sort of shaped the path of the law. And so it was fun to dive into it with that. And as you know, did it with one of, well, a former student of mine who also is now a former law clerk of mine. And so we worked on it together. And there's two histories that we're tracing here. There's both the history of the Supreme Court building and the Supreme Court itself. These doors opened for the first time October 7th, 1935, as you write.

So we're tracing that history with the doors, but then there are the eight panels that are portrayed in the doors. And that's going to go back just over 2000 years. And so we're going to trace that history as well, the history of law itself. And I mean, really, I'm not saying this is like Oppenheimer level blockbuster movie stuff,

but it's pretty close. I mean, you can go'm not saying this is like Oppenheimer level blockbuster movie stuff, but it's pretty close. I mean, you can go in and out of each narrative. And as the architects are building them and deciding how to do it, and you have Taft. And I mean, this is some exciting stuff. To the right audience, it is quite exciting. Well, look, we're just waiting to hear from Judge Thapar to get his signed copy. That's right. That's right.

You had referenced that to him his signed copy. That's right. That's right. I, I, you had referenced that to him last month sometime. Uh, and I think a copy got forwarded onto him. I have not heard back from him yet, so I don't know whether it was well-received. We'll, we'll find out though. Okay. Start, start with whichever story you want. The architectural story of the Supreme Court building, um, perhaps, and then we can dive into the panels themselves. Sure, sure. I mean, obviously, the Supreme Court did not have a building of its own until 1935, you know, constructed during the New Deal. And it had been housed at times in the Senate after the War of 1812, and certain aspects of it had burned. They had even more temporary residence than that. But once Chief Justice Taft

was the Chief Justice, he had already resided in one landmark, and I think noted that the Supreme Court needed its own distinguished place within which to conduct its separate business. And so one thing that really struck me about the project is that Chief Justice Taft started it, served as chairman, and passed away shortly after the commission got going. And he had brought in Cass Gilbert, who is such a preeminent Beaux Arts classicism architect and done so many significant buildings. And Cass Gilbert worked on it for five years and then himself passed away, you know, within a year before the building itself opened. And so I think really both of them were bringing a lot of their best insight and education and experience into what was being constructed there. I can start going into a little bit of the history on architectural flourishes and things there. I can start going into a little bit of the history on architectural flourishes and things there, but they definitely paid detailed attention to every aspect of what was going into the building and really wanted it to be calling out historically to signal events

in the law. Other than the doors, before we get to the doors, are there other pieces of art or things in the Supreme Court that if someone is taking their family, they get a tour of the Supreme Court perhaps, is there something they should be looking for? I think, well, two things. At the front as you walk up the steps, the two statues that are to either side, they're metaphorical. It's not a particular person, but one is titled Liberty Enthroned, and the other is, I believe, Authority of Law. That's what's being called there. and have a visit into the great courtroom itself, the friezes that are on all four walls up above have, you know, Moses, Hammurabi, Solomon, Confucius, Blackstone, Grotius, Charlemagne.

There are likenesses depicted of all of them, and there are thematic, you know, sort of names and groupings for what each of those freezes are. But even on the outside, on the corners, I'm not sure that I'd really even noticed this, but on the corners affixed at the upper corners of each of, you know, the four main sides of the building. They got a little bit obscure on some of the references there. We have Aristotle, Demosthenes, Plato, Cicero, Gaius, Julian, and Paul and Ulpian were suggested by the Donnellys. I can talk about them in a second, but then Cass Gilbert replaced them for Hammurabi and Moses. But there are just little representations of them on each of the corners of the building. You know, I like that juxtaposition of liberty enthroned and then also reference to law and to order, which really is resonant of the whole concept of ordered liberty at the heart of our founding.

resonant of the whole concept of ordered liberty at the at the heart of our founding um so i don't know do we go ahead and jump to the doors because i kind of want to jump to the doors uh the there are eight panels on the doors the shield of achilles praetors edict edict is that our proper pronunciation praetors edict praetors edicts is how a proper pronunciation Praetor's Edict Praetor's Edict is how I pronounce it so I think that that's right we have Latin scholars who listen to this podcast and will correct us if we're wrong scholar and Julian

Justinian Code Magna Carta, Westminster Statute Coke and James One and that is not a reference to cocaine Story and Marshall. Okay. Uh, I I'd love to just walk through them panel by panel. So if you could kind of describe like what the doors look like, and then let's just start with the shield of Achilles. What is it? What is its significance? And I actually found the shield of Achilles of the

eight. It's in my top one or two explanations. So yeah, can we just start like that? Sure. And I'll start, obviously, I want to give a shout out to the Donnellys, John Donnelly, Sr. and Jr. They are- They're long dead, to be clear. So shout out has different meanings here. They're long dead, to be clear. So like shout out has different meanings here. But well, but I will say that for the paper, the curator's office and the Donnelly family, you know, found some materials to provide us to look through when we were writing. It was very interesting. But the Donnellys were very preeminent architectural sculpturists of the day. And they are the ones that selected the items to depict with very little change from the team overseeing it or Cass Gilbert and his input. But it was John Donnelly Jr. who sculpted them.

input. But it was John Donnelly Jr. who sculpted them. Now, the doors are 17 feet high, and each of the panels is about three feet square. And obviously, as we said, the doors are in bronze. Each of them depict two persons that are intending to evoke the scene that is there. For Shield of Achilles, for instance, it is a reference to a very minor story in sort of the sweep of Homer's Iliad and Odyssey, but it's a depiction of something that is on the shield of Achilles, which is the Agora, the public forum in ancient Greece, where metaphorically there's a city at peace and a city at war that are described on the shield of Achilles. And what distinguishes the two is that the city at peace has within it a process by which to resolve disputes between persons that are aggrieved against whom wrongs are committed.

persons that are aggrieved against whom wrongs are committed. And there is on the panel the two who are in dispute. There are two gold coins between them. They're disputing what is owed for the murder of the kinsmen of one of them. And as the tradition goes, they would gather before the elders in the Agora, and the elders would go back and forth proposing what their solutions might be until it reached an acclimation from both of the disputants, but then also the persons that were there watching at the time. And the elder who spoke the straightest judgment would receive the two gold pieces. I found that part was really fascinating to me, this idea that the elder who suggested,

in essence, sort of the prevailing, the solution that ultimately prevailed, received a financial bonus for their wisdom, which was an interesting, fascinating incentive structure. We pay mediators. Yeah, we do pay mediators. Maybe we don't pay them bonuses, success bonuses. Exactly. Exactly. Or we don't, you couldn't really do this and say a three-judge panel, the one who sort of tips the balance gets the bonus then. But I thought that was a fascinating element, a direct financial incentive for wisdom and for sort of wisdom conciliation agreement. I thought that was a fascinating

aspect of that story. I like that as well. I also, it's the fact that it's, I mean, as court proceedings should be, it's public, but that the back and forth continues so that reasoned explanations are given to the people as a whole, and you're trying to get them all on the same page as to what the correct result is as well. So it's not just down to those deciding. It has to be something that's persuasive to the public as a whole. So fast forward, we move from that form of justice to Praetor's Edict. What were Praetors? Praetors were, we've now moved on to ancient Rome, the Roman Republic. And there were consuls who over hundreds of years BC from, oh gosh, probably from 500 BC for the next several hundred years forward,

had more and more power and responsibility. And as the Roman Empire grew, overseeing the courts became, I think, something that was less and less something that the consuls themselves were able to attend to. And so the office of praetor had been established as a high government position, had been established as a high government position, persons being elected to annual terms. And over time, what that began to see is that the praetors in their region would announce the rules for the coming year of disputes that they were likely to see. And they would set down for causes of action. They would set down what were called the formula for disputes that they might see. And they would set down for causes of action, they would set down what were called the formula for disputes that they might see and write them up and have them displayed in the public square. And the tradition became that praetors obviously should not only respect and apply the rules as they have written them, but that succeeding praetors,

unless they have good reasons and are explaining why they're changing them, would abide by the rules that had been set by their predecessors. Do you think they had stare decisis factors about reliance, interests? It might have been less formal, but it is very interesting, though, that you now trace back to 200 BC with Praetor's Edict. wanting and expecting the law to be stable, but more to be understood so that they understand what the rules of the road are as they go about their lives and what they can expect if they come into conflict with someone else. I loved that you found two cases that actually cite Praetor's edict. One from 1961 with the very famous Judge John Minor Wisdom. And yeah, there's so many judges that have amazing names in our history, but John Minor Wisdom is high on the list. And the Fifth Circuit Courthouse in New Orleans is named after him, of course, the Minor Wisdom Courthouse. Not major wisdom, but minor wisdom.

And it was the edict concerning those who pour anything out or throw anything down. And it was a strict liability rule. If you pour stuff out your window and you hit someone, it's your fault. Even if, you know, you didn't know someone was down there, basically. Well, that's why perhaps John Minor Wisdom's name is on the Fifth Circuit building. You think it's this opinion in particular? No, you compliment me for finding an opinion from 1961. He's the one who finds this edict and quotes it in the translation. The praetor grants a cause of action where anything is thrown down or poured out from

anywhere upon a place where persons are in the habit of passing or standing. I will grant an action against the party who lives there for twofold the amount of damage occasioned or done. Do you think that law clerk got a bonus? Who found that? I hope so. Two gold pieces. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get

$30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. By the way, it's just as an aside, I'm so glad we still name courthouses after prominent figures in the law and it's not up for sponsorship. I would hate to do an oral argument at the crypto.com courthouse. The Pringles Fifth Circuit. Don't give anybody ideas. I don't know if it's named after Buc-ee's, David, would you really be that sad? You know, I have to confess something.

I've never been to a Buc-ee's. Okay, Well, you're done with this podcast for the rest of the time. Anyway, Judge Eskridge. Come on down to Texas. I will show you the very beautiful Buc-ee's between Houston and Austin. Yeah, I mean, but really, and the Supreme Court cites to a praetor's edict in an 1821 decision about uh illegitimate children i mean this is to me i found this one a lot more compelling than achilles shield in terms of it really being sort of the root of our first laws as a form of stability. I agree. Overall, the article, what I discerned, my law clerk, Jack Bisorbo and I, what we discerned was that the rule of law has its most strength and stability when it is the written rule of law. you know, you can understand law as tradition and things spoken and handed down that way. But it is the force of things being written down and thereby being made

very precise so that it can be understood and transmitted exactly and transmitted that way. That is what really I was drawing as to the Praetor's Edict. I mean, the first instance of, if you want to consider it judge-made law, it is the judge, we should say, will have two people in them. And that's going to become very relevant here, where you have basically unnamed Scholar and Julian. flash forward 300 years or so from Praetor's Edict and what's being discussed there. And he was very prominent in the reign of, oh gosh, Hadrian and Pius. He did his main work then. And he did a very large digest of the law. But he also was charged to write what was called the perpetual edict. And it was to take Praetor's edicts were mutable. They could change. And so obviously, across the empire, they were being written up and applied differently. And the emperors at that time, and we'll see it even more in Justinian on the next panel, decided to unify the law and make it even more understandable in a way, but just that the law that's applicable to one is applicable to all. So the perpetual edict is one that came up with all of the potential causes of actions and things that the praetors at the time were doing, and literally made it perpetual. And so if it was then going to be changed after it was decreed, it would be up to the Senate to do so. But Julian also did, it was one of the first, maybe the first sweeping legal treatise just called the Digest. A 90 books wherein he gathered together prior decisions and law and started carving them up into different

groupings so that, again, areas of the law were more distilled for those. And the scholar that's with him, Julian was a great educator of the time. And so scholar is a student before him learning the law. And so the third panel is... It's really an ode to law professors. You know, it's an ode to law professors, but it evokes law as a learned profession. And we can pat ourselves on the back a little bit for that, but that it does require both academics that sincerely care about the law and making sure that it's gathered and understandable, but then also students that are interested in it. I mean, want to know what the law is and carry it forward. And it's the law,

but it's also the traditions of the law. And that's what they gather there. I love the progression here, how it's progressing continually from most primitive to most sophisticated. And the milestones here also have their own fascinating historical context and their own fascinating historical echoes and so in justinian uh that which is the next panel um you move you you you talk about justinian but then also a name comes up that's about to be more relevant as with a new movie coming out and that's Napoleon. And so talk about Justinian a bit. And then also if you could weave in a little Napoleon and the Napoleonic

code, that would be great. And don't forget the other movie that this references, which is the 1997 Steven Spielberg Amistad, which after reading this, I then had to go back and watch some of, I mean, this is Anthony Hopkins, Matthew McConaughey, all-star cast in what is a truly great movie that I think a lot of people don't remember. Like if you're looking for something to watch with your kids this weekend, older children, Like if you're looking for something to watch with your kids this weekend, older children, it's a serious topic.

But it is about the majesty of the law in the face of a culture headed the other way. Right. With Anthony Hopkins, you know, arguing as John Quincy Adams. And we'll get to that in just a second. The case of the slaves before the Supreme Court in the matter of Amistad. But with Steven Spielberg and the way he was able to dramatize that, I would also say, you have to give Spielberg credit for Lincoln, because the way he did the floor debates for the 13th Amendment, absolutely incredible. And that's a lot of the screenwriting credit for that. But to be able to just make that come to life, what they were putting on the floor of the house for the vote there was incredible. It really was. So Justinian, we're now at the very near end of the Roman Empire. He was emperor from 527 to 565. I'm looking at my notes here. And he wanted to pull together in a completely unified way.

way. You can see this between Julian, Justinian, and some others. There's a lot of OCD personalities. They're completists. They want their lists to be perfect. I feel that. But yeah, Justinian pulled together really all of the centuries of growth in the Roman law to pull it together into, and they have Latin names, but the code, the digest, the institutes, and the novels. The code itself took everything that was statutory law and reduced it into one statutory code, after which the prior laws were repealed. And that code was the code going forward in the Roman Empire. Edward Gibbon, we all know him for the history of the decline and fall of the Roman Empire. He called this, the Corpus Juris Code Digest Institute's novels, a fair and everlasting monument to

Justinian's legacy. And so, it ruled in the Roman Empire until, as the Roman Empire faded, the code faded. But it, you know, scholars kept aware of it, kept it alive. And ultimately, you come around to Napoleon and he pulls together, obviously, the code in France. And, you know, with everything that he had done, wars, well, also some bitter losses. But he has a quote that we found that I love from Napoleon. My true glory is not in having won 40 battles. Waterloo will blot out the memory of those victories, but nothing can blot out my civil code. That will live eternally. And so, and it does. For those taking the bar in Louisiana?

Yeah. Napoleon is very relevant. It does, but not only does it, Justinian's code lives on. Not in that form, but it informed an awful lot. Now, turning to John Quincy Adams and the story of La Amistad, that was, you know, it was the slaving ship, Spanish slaving ship that had departed with its cargo for Cuba from the African coast. And it was taken over by the slaves on board, and it was turned north to America. And they sued for their freedom. And the United States, you know, was somewhat taking the side of the Spanish that it should be that, you know, this being considered property of Spain, that it would be returned to the Spanish. And I just want to read a couple of quotes here because Adams, in arguing it to the Supreme Court, he says, I derive consolation

from the thought that this court is a court of justice. And that leaves the question of what is justice, especially in a sense when you're talking about the dispute at hand. Putative slaves torn from their country and seeking freedom before strangers at the Supreme Court. And John Quincy Adams fully winds up and says, justice as defined in the Institutes of Justinian nearly 2,000 years ago, and is felt and understood by all who understand human relations and human rights, is, translated from the Latin, the constant and perpetual will to secure to everyone his own right. Now, that's not a dispositive statement of the law that would guide the justices. But Justice Story, when writing it up afterwards, concluded that these prisoners were not property and they were to be freed and to have their

justice and you, and go, go without delay from the court. It's a wonderful story. Again, 1997 movie. If you haven't watched it or haven't watched it recently, highly recommend. Yeah. Or you can read about it, but like the movie is awesome. So we move from that. That's the, the last of the panels on one side. And then we're going to move to the panels on the other side,

which are going to jump. Everyone can guess the next one. Everyone. Everyone can guess it. Should I give you a hint? 12, 15? So on the left side, you have your Greek and Roman history. On the right side, you're moving into your English and American.

And of course, we're starting with the Magna Carta. And there's one aspect that was really interesting to me that I'd forgotten. It's been a while since I've done my reading on the Magna Carta. So this was a fun refresher. I had forgotten, A, well, you knew the king had been forced into it, but I had forgotten how angrily the pope reacted to the signing of the Magna Carta. That was fascinating. But anyway, if you could sort of move into the Magna Carta side of the doors and maybe talk just a little bit about that history. And why did the pope react so strongly to limiting the King's authority

in England? Can we also throw a little bit of side eye on the Magna Carta that like, there's this sense, I think in American law that the Magna Carta is something like the declaration of independence. It is not, it is quite specific, you know, like on these specific lands and these trees, the King can't take my pheasant type stuff. And yeah, there's some other things intertwined and the Magna Carta is going to go through, I forget how many, what, like 55 different iterations. But we look at this 1215, it's not the specifics of it. It's not the end all and be all, that Magna Carta is going to change and evolve, but it's the idea of having the king sign anything at all.

Yes. Yeah, it is placing the limits on the royal prerogative. That is, I mean, that's the moment that it's not simply at the whim of one person, whoever that person is that happens to be, you know, wearing the crown at any given time. With John I, he ruled from 1199 to 1216. And he was a quite harsh and ruthless king. He taxed heavily. Probably the worst for him was that he constantly was engaging England in foreign wars that he always seemed to lose. And the barons ultimately come to be dissatisfied with him and the burdens that he's bringing on to the country. and the burdens that he's bringing on to the country. And so basically civil war had started and to avert what was happening, King John with the Archbishop of Canterbury met the barons on the fields at Runnymede outside of London, relatively close to Windsor, and agreed to a charter that carved out,

you know, certain limited rights that were being granted, you know, basically to the noble class. But these weren't something that were new. These were rights and recognitions that John's predecessors had recognized, but which King John was no longer abiding by. Now, England at the time was Catholic, and the idea that in, you know, it wouldn't just be England, it would be in any outlying area that was Catholic or under Catholic rule, that would also be undermining the authority of the church in some ways. And so that divine right, I mean, that's what Pope Innocent was going on, was that divine right couldn't be limited this way.

And so he declared, Pope declared Magna Carta void and that it was a subject of excommunication. on how you want to think about it. Like he was not well liked in England so much so that there's a whole character that we still have today based on how mean King John is. You know, what's interesting about that is two generations forward. So his, I take it, it would be his grandson, Edward III, who did one of the very prominent reiterations or reiterations of Magna Carta in 1297. Edward III, that's long-shanked. Exactly! Yes! These were not good guys.

Although, actually, Edward, it's interesting, is a little bit more complicated than the Braveheart story would make it seem. Edward in the first part of his reign, actually pretty great. Edward in the second part, that's where he's Bravehearting and killing a bunch of Scots, whatever, whatever. We're all complicated people. Yeah. And in the paper, as I'm writing it up about Edward III, it's sort of like, I'm saying an awful lot of nice things about him, even though I've seen supposedly what he did in

Braveheart, which I did not like. That's going to be later, later in his life. Give him credit for what he does. I mean, when your name is, when one of your names in addition to Hammer, I mean, in addition to Longshanks is Hammer of the Scots and you are doing a movie from the perspective of the Scots. There's a whole theory that the reason like this changed, you know, there's a shift in Henry VIII, for instance, and it's credited with him falling off his horse during that joust

and that maybe he gets a traumatic brain injury. But with Longshanks, it's the death of his beloved wife. The man is simply grieving for lost love, David. Oh, so he just brutalizes an entire population as a coping mechanism. Okay. Yes. Well, you know, this is a pre-therapy age, Sarah. So... Are we off topic? I don't think we are. I think we're on top. Well, actually, I'll just say, but so as we're talking about John, we're also talking about Pope Innocent and how John was acceding to it, but he's relaunching his war the next year.

And Pope Innocent has declared it to be a subject of excommunication. But as it turns out, in 1216, both of them die. And it is a very young son of John who exceeds to the throne at age nine. And he, Henry, has to reaffirm Magna Carta and reaffirms Magna Carta many times over. His reign lasts 60 years or so. And it becomes something that really lodges in English law that way, that there are recognized limits on the power of the crown. And there won't be, and this will be important as we go into a couple of the later panels, but there won't be variance from, if you consider those gifts from the king back to the people at the time, there's not going to be variance from those gifts.

And what's going to become more pressing is whether they're going to be viewed as gifts from the crown or whether they're going to be rights that can be demanded by the people, and what those rights should be. We also can't leave Magna Carta without the most enduring part of the Magna Carta. Can I do the dramatic reading? Yes, please. No free man shall be taken, or imprisoned, or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him,

except by the legal judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice. So that was in the 1215 version. And then about 200 years later, when parliament is setting Magna Carta into statutory law, that part is translated, if you will, as the following, that no man of what a state or condition that he be shall be put out of land

or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death without being brought an answer by due process of law boom so no wonder it's on the door oh it's it is the uh beginning moment of what you would call constitutional law uh the constitutional tradition in england began that, and it took a very different form once you have the Constitution in the United States, but it all traces back to then. All right, so the next one's a little bit more obscure. Westminster Statute 1275? The interesting, one of the most interesting things to me about the Westminster

statute is that it's dated 1275. And that's 60 years after Magna Carta, where across the doors, the two doors as a whole, the eight panels, it covers 2000 years. And I was when I started digging into Westminster statute, I was like, well, what happened 60 years after Magna Carta that was big enough to warrant the inclusion? And it is looking at statutory law in the English and American tradition in much the way that Justinian did, but it was Edward the, sorry, not Edward III, Edward I, Longshanks, as we were talking about before, who had pulled together the English law at the time. There were great dissatisfactions about equality under the law

in England at the time, and what had happened during the time of John, but then also during the time of his father, Henry III. And so he, with sort of his codifying counsel, pulled together, as did Justinian, a revision of the law, which was then, you know, it's considered the greatest statutory reform in English legal history. And for that reason, you know, it is giving credit to the source of law being the legislative power overall, but getting statutory law down in clear and understandable ways on those items that are going to touch people in their daily lives and making sure that that is out there known and understandable. And in a sense where it has been reviewed by those charged with the legislative power to make sure that the laws

are accomplishing what they need to do in service of the people, in service of what the government is supposed to be doing for them. And this is separation of powers. I mean, that's going to be a key part of this. Well, absolutely. I'm trying to think. Yeah, actually, if you think about it that way, because the very next one, when we get to it, is Cook and James I. That's separating the judiciary from the executive branch. You could look at Westminster statute as separating the judiciary from the legislative branch. Each has their own distinct and important part to play in it. their own distinct and important part to play in it. But the actual source of the law, as it should be, is the law that is being considered by the representatives of the people themselves and what

is being passed as legislation there. Well, let's add this to the next one, although you're going to have to explain why C-O-K-E is pronounced Cook. Yeah, I'm curious about that. All I can say, well, we'll get also in the comments afterwards. I have always heard that it is pronounced cook, even though it is spelled Coke. And I agree with you, look at C-O-K-E. I think that I should be pronouncing it Coke. And it's just one of those words. It would be like, you know, I'm a judge in Texas, but I'll still say voir dire. But I know that I should be saying in Texas, voir dire, but I'm just not going to do it.

Don't do it. Exactly. No, the correct pronunciation, I believe, is William Cook. But this is his clash with James I in the early 1600s. It began as a religious dispute, not with Cook himself involved, but with, it's called Fuller's case. Nicholas Fuller was a barrister of Gray's Inn. case, Nicholas Fuller was a barrister of Gray's Inn. And at the time, there were both civil courts and ecclesiastical courts. And so they dealt with different matters. You know, was it something dealing more with spiritual matters? Okay, that would go to the ecclesiastical courts.

Is it something more, you know, of of this world temporal that would go to the civil courts? Nicholas Fuller's clients would have, they were fined upon refusal to take a religious oath required by the high commission. And so they were imprisoned on that basis. And Fuller himself, in his legal argument on their behalf, was really charging, in his words, he was charging anti-Christian actions by the judges, not of Christ, but of anti-Christ, and that the power of the commission was being used to suppress the sacrament and the true religion. And so now he's in a lot of hot water. Aggressive legal representation. Very aggressive. But he's petitioning the king's bench. He's being charged under religious law

for essentially what he says is slander. And slander should be something heard in the civil courts. And that is when Cook gets involved. The ecclesiastical and civil courts would issue writs against each other and try to take jurisdiction back and forth between them. And surprise, surprise. And Cook was very vested in this one and wanting it to be before the common bench. invested in this one and wanting it to be before the common bench.

And so issued writ of prohibition on a temporary basis to take and decide the issue of which court it should be in before him. James I, given divine right of kings and still the connection of the monarchy at that time to the church of england um believed in the primacy of the ecclesiastical courts uh and wanted it to be decided there but he also decided that he would sit in person and on the common bench to i guess i'm not sure whether to render that decision or help make that decision, be the correct one. Don't forget, by the way, this is the same James I who survives the Guy Fawkes plot, the gunpowder plot on his life. And the same James I who is the architect of the King James Bible. architect of the King James Bible. And was it James I also from whom the pilgrims fled in 1620,

ultimately, when they departed on the Mayflower. So a lot of religious versus civil or secular controversy here. Very much so. And so on this dispute, Cook is summoned personally by the king to answer whether, you know, what's depicted on the panel is Cook barring King James from entering the court to decide the case in his own person. Instead, he's summoned to Whitehall by the king to have this conversation. And Cook says no, says that this is not, it is settled, it's become settled under the British Constitution that the judicial power is separate. And he, it's hard to get into this quote, because then Robert Jackson uses it in the very famous Youngstown Sheet and Tube case versus Sawyer about steel seizure cases. But Cook quotes, you know, goes back even a couple centuries before him to an English jurist named Henry Bracton, because the king has said, if I'm to not be there, then I am to be, then it's heresy to say that I'm to be, you know, under some other man's decision. And Cook says to him, thus wrote Bracton, the king ought not to be under any man, but he is under God and under the law. And so he's, and James accedes to that, does not go in himself. And that is what Robert Jackson refers to

when talking about the steel seizure case and whether President Harry Truman had the authority to seize the steel plants in the midst of the Korean War. And it's obviously something that very much defines the division of the powers between the executive branch and the judicial branch for us. So we don't even get to America until the final panel. Panel eight. Panel eight, Story and Marshall. Take us there, Judge. And sort of why is Story there? Yeah. Yeah, take us there. Well, what's interesting, this is one of the panel suggestions that John Donnelly had suggested that actually was modified. He had suggested that it just be John Marshall announcing Marbury versus Madison. But it was noticed that all of the other panels were depicting two persons. And so to

balance everything, it was decided that the rendering would be of Story and Marshall. And, you know, it can no longer really be the moment that Marshall is handing down Marbury versus Madison because Story wasn't on the court at the time. He came onto the court 10 or 12 years later. But I think that it now is taken to represent that Story and Marshall are in conversation about the decision in Marbury versus Madison. Some light chit-chat. Some light chit-chat, which I'm sure that they had from time to time. When you look at, okay, what are the really big decisions that the Supreme Court's handed down? Marbury v. Madison is going to be on any list that you have there.

And it's the one that's given credit for instituting the power of judicial review. The money quote from Marbury v. Madison is, it is emphatically the province and duty of the judicial department to say what the law is. But that's really only made in service, I mean, Marshall framed a more elemental principle. He said, and this is where the power of judicial review comes from, certainly all those who have formed written constitutions contemplate them as forming the fundamental and paramount law of the nation. And consequently, the theory of every such government must be that an act of the legislature repugnant to the Constitution is void. And Marshall gets credit for being the author of that opinion, and rightly so. But as I try to also show in the paper, I mean, that has a very long

tradition, tracing back in English legal history, but also that it wasn't even really a surprise at this early time in the American Republic that there was this thing to be the power of judicial review. It's explained right there in Federalist 78 by Alexander Hamilton. justices, in some opinion or another, or one of their legal writings, had specifically pointed to this, that, look, if you have a constitution, which is to be the paramount and fundamental, you know, law of the land, the legislative power that's emanating under that is, you know, adjacent to that, it's subservient to that. And so it cannot be contrary to something that is in the constitution. And it was, it was a big moment, but it was something that was relatively agreed to at the time. You know, it's interesting you raised that judge because when I think about learning about Marbury versus Madison, when you learn about it in college, it is this big moment. And then when you learn about it in law school,

it's like, yeah, of course that's, that was the inevitable result. This is not, this was not earth shaking. This was not revolutionary. This was basically reaffirming or affirming that the, the place of the judiciary in the American Republic would be the place of the judiciary as previously understood. And that I found that kind of interesting this and the one on the surface, Marbury versus Madison, massive moment, bronze door worthy moment. But then when you dig into it, you realize, okay, this was actually not a legal revolution. okay, this was actually not a legal revolution.

Marbury was enacting what was a commonly understood role of the judiciary at the time. I've always found that juxtaposition to be interesting. No, I really agree with that very strongly. Like I said, Chief Justice Marshall, if you go into Marbury v. Madison and read it thinking, wow, he's just coming up with this all on his own. What a tour de force. I mean, what a brilliant mind. And it's not that, but it links also, you know, we mentioned the class that I teach on origins of the federal constitution is that, you know, these are when it's, you know, it's a big moment. It should be on the door, but it's on the door because it's the first instance within which the Supreme Court applied it itself. But it's not being made up out of whole cloth. I mean, it is something that is being looked at and considered in terms of the text that's there, but then also what's written down in prior cases. And it's simply being brought to bear in a new situation. So this isn't,

it's not one justice or the justices at that time voting on it that, hey, this is a new thing that we want the Supreme Court to be doing. That's not what they did. Can I tell you my favorite part about panel eight? Absolutely. So we haven't actually talked about the visual depictions of each of these very much. In panel eight, you've got Marshall and Story chit-chatting outside of a building that is going to look very unfamiliar to people because it doesn't exist in this form anymore. It is the original pre-War of 1812 design of the U.S. Capitol that they're standing in front of. The dome is going to be much smaller, much less column-y than the current dome. And even the front's going to look a little reminiscent. Anyway, I think it's really cool that they captured that original capital design.

Sarah, with that, I'm going to have to get that observation written into the text with an end note devoted to you for citation. I know that you just wanted to be cited. So badly, actually. It's all I've ever wanted. I've ever wanted. No, and this, the article is going to be in a upcoming edition of the Journal of Supreme Court History. Oh, fantastic. Yeah. So that's where, it's what Jack and I had in mind when we were writing it up, hoping

that they would like it and want to publish it there. And they accepted it. It's not in vogue or... It's not going to be like that, no. I think this is super neat. We didn't get to talk a lot about your class, the origins of the federal constitution. It's interesting though,

because we've talked to Chief Judge of the Sixth Circuit, Jeff Sutton, about the origins of the Constitution of the Confederacy and what all that looked like in our special Legal Eagles episode briefly. Is there any big takeaway on the origins of the federal constitution that's going to surprise people? I mean, we don't need to rehash Burke, right? No, it's, again, for the class that I put together. You know, one thing I do want to just say about the class, and I think Jeff Sutton, I know that he also teaches very much on the state constitutional system. That is near and dear to his heart.

near and dear to his heart. And may I say, when I was clerking for Justice White, that is the term that he was clerking for Justice Scalia and Justice Powell. And so I've known him since then. We were co-clerks. So I got the idea for this class when Justice Clarence Thomas, the distinguished lecturer at Pepperdine University is the William French Smith address. And in the fall 2008, he was the distinguished lecturer. And he did it by way of a fireside chat. And I was very much out of my depth on a panel in conversation with him, with Doug Kamek and Ken Starr, who was Dean of the law school at the time, and a professor at Pepperdine, Shelley Saxer, and I was in private practice. But he was posed a question, you know, about his judicial philosophy,

obviously, textualism, originalism, but a question that sort of dug into, so how did you arrive at that? Why is that the approach that you take? And here's what he said. You know, I think first of all, let's just take a step back. One of the things that I wish had happened when I went to law school was that we'd had a course that preceded constitutional law entitled something like the formation of our constitution so that we could see where this document came from, its sources, the framers. We'd learn more about Madison and what he did. We'd learn more about Jefferson and what he thought when he wrote the declaration. We'd know more about what happened in Philadelphia. We'd know more about what was going on contemporaneous with the founding of our country and the revolution

and the Constitutional Convention. And with that underpinning, then we could get a sense of what went on afterwards with Marbury versus Madison, with the debates over the National Bank, and things like that. It gives us a context, but we move right into constitutional law. And we think that constitutional law is synonymous with that document, with the constitution. And I was sitting there beside him and I thought, you know, and I had long ago finished my clerkships. And I was like, I really wish that I'd had that class when I was in law school. And I was at the time teaching as an adjunct, I was teaching federal courts, which is a very hard class to keep current with and continue to teach. that what we will read, what the students will read, is not decisional law necessarily, unless it's maybe some common law decision that needs to be read. But actually find excerpts,

whether it's from Federalist Papers or letters between them or just other things that were going about at the time, that show what it was that was in mind for each of these provisions when they were put to paper. And so you don't, and you see that these things, they're not coming out of whole cloth somewhere. There is something that informs them. And also, you know, excerpting, here's how the Virginia Constitution had already handled it at the time. Here's how it had been written up by Parliament in whatever statute or in the petition of right or whatever. And tracing some of these things until you get to the language that we have in the Constitution. And it's not so that you could look at any Constitution, at any constitutional provision on any issue and be sure that you know, you know, how you would decide the case. But like Justice Thomas was saying, to try to pull together, you know, a big picture

context for what it is that the Constitution was setting out to do and the problems that it was intending to solve at that time. I mean, I just have to note here for any lawyers who might be appearing before Judge Eskridge, it's really more of a warning after we talked about the 56 pages on the bronze doors. The one that I really enjoyed in this reading, part 14, article five, amending the constitution this is 63 pages on how not just article 5 but a lot on how article 5 itself is going to come into being with the words that it has and article 5 is the thing that david and i are going to criticize the most is that fair david the most uh the justice scalia said is sort of the part of the constitution that needs fixing this idea that it's so hard to amend the Constitution.

And I can sit here and complain about it or I can read 63 pages on how this came about, why this was the compromise. And you start feeling like, well, maybe get off your high horse a little, Sarah. Like they didn't just like, you know, throw some stuff down and go out drinking a couple minutes later. Well, I think what's interesting about the material for Article 5 on mode of amendment is how it informs, I think, in a lot of ways, interpreting the Constitution today. Because, you know, there is obviously a means by which to say, announce, change, do whatever you want to the Constitution. There is a mode for that. And that is a very unique feature of the U.S. Constitution. That is not something that was in constitutions of the day or that an organizing feature of government could be malleable in this way by the people. Now, it's very difficult. But Sarah, as you say, when you go back and say, okay, well, if three-fourths is too much,

I mean, is two-thirds better? Should it be 60%? Where is it? And Madison's pretty convincing, I think, that the percentages that they picked were correct. It was certainly incorrect, as under the Articles of Confederation, that it had to be unanimous, because that would never work. But there is a, I can't find it, but there was a, there is one piece from Madison where he's writing someone and says, well, you know, with the first Congress,

that's when the hard work is going to be done. We'll write all of the laws that are needed. There won't really Congress's work will be done after the first Congress. And then it will just be up. Then it will be up to the people to decide what other powers they want to give to Congress to write further laws. I mean, that's sort of funny because you could argue that's current Congress's stance too. They're done. They don't need to write more laws. We have all the laws we need. I was just, I had my legislation professor, he said, there's one thing that you will never hear at the end of a legislative session. You will not hear the legislators come out and say, you know, we looked at all of the laws on the

books and we've decided we've got it just about right. We've decided there's no more laws that are needed. It's like there will always be something. Can you imagine showing Madison, Hamilton, et cetera, the United States Code annotated plus the Federal Register and saying, the federal register and saying, this, this is your progeny. It would, it would be a remarkable moment. Well, from the anti-federalist papers, Brutus would say, I told you so. That's right. I just published a piece today that was anti-federalist over uh from politico magazine um all right so every lawyer beware judge eskridge is not to be messed with on history on detail on braveheart all of it just don't bring your weak text history and tradition arguments into judge Eskridge's court.

And I'd be remiss if I didn't mention that also though, if you're getting called for jury duty, you should be hoping begging to get into judge Eskridge's juror pool. Because as I understand it, sometimes your wife attends the trials. And for those who don't know Monica Eskridge, um, she is, and we say this all the time of like, Oh, so-and-so's wife is more impressive. And you sort of, it's almost like, I don't know, it's, it's not meant sincerely or something. No, no, she actually is way more impressive, but then she'll sit in your trials and sometimes bring the jurors her

homemade cookies, which is outrageous. She has been featured in Vogue, correct, for her gingerbread houses. She is a graphic design artist and very talented in that respect and uses it to translate. I mean, she has a very visual mind and she's able to translate things into physical medium. And yes, one of her gingerbread houses, which was of the Eiffel Tower, was selected by Vogue when they did some,

you know, the gingerbread houses of that year. Your Christmas cards are also off the hook. The, uh, uh, she's also quite a good baker. And although, you know, Chief Judge Rosenthal in our court, uh, is she, she sends, uh, she, she will bake and send in things of her own to her jurors. Uh, but Monica has made, wow, that is other level. It is. But, uh, Monica has made sure, uh, that our jurors feel both welcome and well-fed when they are performing their jury duty.

I have to tell you, David, I had these sugar cookies at her house a couple weeks ago. And you think sugar cookies, what does it matter? But she's been perfecting the sugar cookie recipe and trying out different things and really getting it right. I made myself ill, truly sick. I ate so many of them. They were so, so good and I couldn't stop. And it was a little embarrassing. Like, you know, we're friends, but we're not like five cookie friends where you just eat all of her cookies. Um, but I mean, it was worth it. It was totally worth it. But judge, this has been a treat. Can I mean, it was worth it. It was totally worth it. But Judge, this has been a treat.

Can I bring up one other thing? I mean, Sarah, I really thought you were going to bring up We'll Be Back, the video that I did with Judge Elrod. And I bring that up not to say that I personally want to talk about going viral with that, but because I'm not sure if I ever asked, do you know where the idea originated for that? I just always assume it's judge Elrod because she's the instigator of all Mary. No, it was judge Edith Jones.

No. Okay. So some background here, David, you and I did talk about this during COVID, peak COVID, that Judge Eskridge and Judge Elrod did a reboot of We'll Be Back from Hamilton with their own lyrics. And it went viral and every lawyer was sending it around.

And it was like the only fun thing other than cat lawyer that really happened during COVID in the law was cat lawyer. And these two, uh, doing Hamilton. Um, and the reason that it would be so shocking that judge Jones had this idea is because judge Jones is maybe not known for like being the merriment judge of the fifth circuit, but little known.

She does sing in her church choir. She's really, really quite dedicated to it. And it was one of the questions I was asked in my clerkship interview was about singing. Really? That's interesting. I would not have known that. And what was your answer? Well, I was the musical director of the musical at Harvard Law School, and it was on my resume. And so she was asking like, well, do you sing? And I was like, yeah, like I perform in the musical as well. And I did musical theater in high school and a little in college. very, very dedicated to and into singing. Just not at the Cat's Meow karaoke club that Judge Elrod has been known to frequent in New Orleans sometimes. Well, let me tell you the story briefly. So we're into COVID lockdown, and Judge Jones,

Judge Elrod, and I are all on the board of our American Inn of Court chapter in Houston, the Garland Walker Inn of Court. And the board has just decided, well, we can't have, you know, our in-person meetings for the coming season that start in September. And by the end of July, Judge Jones asks Judge Elrod and I to get on a Zoom with her, and we do. And she says, we're thinking about doing a virtual reception so that we can at least have everybody together virtually, because we think that would be, I was like, that's a great idea. And she said, I also think it would be a good, because I've done, you know, some of these songs for our other inner court performances. And she says, I think it would be a really great idea if you and Judge Elrod did a song that we could do during the Zoom meeting. And I was like, that's interesting. I was like, okay, I'll just need to think of a song. And then she says,

when I also think that it would be really funny if you took, I'll be back from Hamilton and redid that as we'll be back. And the hardest thing on doing a parody song is coming up with the right song. And I was like, that's the perfect song. And I had a draft of it by the end of the evening. But she gets, that's why at the end of the video, she's one of the full group singing. That's why she was there. She professed to not want to be on. I was like, this was your idea.

You have to be filmed to be part of the video when we put it together. I didn't realize even the song choice itself was her idea. Yes. What? Yeah, she had it all in mind already. That's amazing. Love it. And what is your singing background? How did you get into this?

Really, no singing background. It's unusual to have gone around that way singing. That was not or that was for like a group of 150 people. And someone got a hold of the video and thought, hey, I'll just post this. I actually gave it to josh blackman who then posted it up and of course went wide it was supposed to be seen by 150 people live and that was it um the the you know if we sound good singing uh it was one of our um friends the Walker Inn is a former professional musician, and his man cave is a pretty professional recording studio. And I'll just say he is a master with auto-tune. He can make you sound really amazing. So I can't say that if I started singing right now, I would sound like that.

Well, we'll clearly put that in the show notes for those who missed it at the time. But you probably saw it at the time. So, you know, very few of you will have missed it. But some of our undergrads, some of our law students maybe weren't totally there in COVID. And if you don't know about Cat Lawyer, I'd also recommend that one. Yeah, but just don't Google Cat Lawyer. Just preserve Cat Lawyer as a moment in time. Do not try to find out anything about the person who was Cat Lawyer. I am not a cat.

See, just leave it at that. Don't Google Cat Lawyer. But it was, I rewatched that recently, Sarah, and I think I laughed every bit as hard as I did the first time I saw it. Well, judge, thank you so much. Thank you for letting us preview this bronze door piece. It hasn't actually come out. We're getting, this is the first interview you've gotten to do. We know you're going to get inundated with requests. Oh yeah. And we, we appreciate you making us first and supporting us here over at advisoryions and always being a good friend. It is. Well, it's a thrill to be on. I really appreciate the enthusiasm. But Sarah, being on

is a great moment for me. As I've said to you, one of my law clerks is such a fan of yours and of the show that this is making me look good in her eyes. So I'm just glad to be here. You've known me since I was a 1L. That's right. Yeah. He interviewed me for a summer job. That's fantastic. I did not know y'all went back that far. This goes way back. Yeah, that's great. So I'm happy to return the favor finally. All right, listeners, thank you so much for joining us. This was Judge Eskridge of the Southern District of Texas, my home district. And I mean, what's better than an hour about two doors? We promised you that this was going to be amazing. We delivered. You delivered, Judge.

Thank you.