If the good Lord’s willing, the creeks don’t rise and I live up to my good intentions, I think I’ve found a new project. Or maybe the project found me! It comes in the unlikely form of a somewhat wonky Supreme Court watchers’ podcast called Amicus (legalese for amicus curiae, a friend of the court) cohosted by Dahlia Lithwick and Mark Joseph Stern, two of my favorite court-watchers.
An amicus, according to Cornell’s online law dictionary, is “a person or group who is not a party to an action, but has a strong interest in the matter.” By that criterion, Lithwick (JD, Stanford, 1996) and Stern (JD, Georgetown, 2016), senior writers and legal analysts for Slate, qualify as amici.
This month Lithwick and Stern kicked off a special series they call “By the People,” riffing on a key passage in the preamble to the US Constitution. On a Slate.com portal page, they argue that in recent years the US Supreme Court assumed powers more properly belonging to the states, the lower courts and the legislative branch. Consequently, they add, the court is losing its sense of legitimacy in the public eye:
For the better part of two centuries of U.S. history, the American people understood that they—and not the Supreme Court—were the final arbiters of the Constitution. But in recent decades, nine unelected justices have claimed that mantle for themselves. Now, with the high court’s claim of neutrality and legitimacy crumbling, an urgent question must be answered: Can “We the People” restore our power to interpret the Constitution—and if so, how?
At least as far as I’m concerned, Lithwick and Stern are preaching to the choir.
Here’s why: I spent two to three years in graduate school studying the foundations of the Anglo-American legal system, and I know what’s at stake here. I don’t menion it very often in casual conversation, but my dissertation was a real thriller-diller titled “Limited Government in English History Plays During the Reign of Queen Elizabeth I, 1558-1603.” It traced the theory of the rule of law from a 13th-century Anglo-Norman jurist Henry de Bracton, famous (at least among wonky grad students) for saying “[t]he king must not be under man but under God and under the law, because the law makes the king … for there is no rex [king] where will rules rather than lex [law],” through the centuries up to St. Thomas More and Shakespeare.
After I got my PhD (right smack in the middle of the 1974 recession), I wound up covering the day-to-day intricacies of local government and criminal courts in my exurban home county in East Tennessee. I honestly don’t know whether that was going from the sublime to the ridiculous or the ridiculous to the sublime. It had elements of both.
But it gave me an unusual perspective on the law. I remember covering a meet-and-greet at the county road superintendent’s equipment lot when a slate of supreme court justices (elected officials in Tennessee) met road workers at shift change; I felt oddly moved, and still do, by a political system that allows them to get out their air-conditioned judicial chambers in Nashville to sweat, scratch and shake hands with ordinary road workers.
And I am heartbroken — honestly heartbroken — in ways I can’t logically explain, when I see what the Trump regime is doing to undermine our legal institutions.
The rot is pervasive. It extends from white-shoe law firms intimidated into canoodling canoodle with Trump and Pentagon lawyers who say it’s okey-dokey to bomb Venezuelan fishing boats without a finding of probable cause all the way down to masked, paramilitary federal agents who think it’s OK to kidnap a 5-year-old wearing a bunny hat. I could go on at some length. Why, for example, is the regime hellbent to destroy the International Criminal Court? But I don’t have to. You get the idea. My grounding in constitutional history, combined with my experience covering day-to-day practice in an East Tennessee courthouse, tells me this time to take Trump very, very seriously indeed.
However, I haven’t entirely given up on small-d democracy. And one of my reasons is the faith I still have in the Anglo-American legal system. Trump may be awful, and I believe he is, but we’ve been through worse in the 800 years since King John of England was brought to heel by his barons and signed the Magna Carta or “Great Charter.” That touchstone of common law procedure survived the Wars of the Roses, the religious upheavals of the 1500s. It survived King James I and his pretensions to divine right monarchy. The English Civil War, the execution of King Charles I and the “Glorious Revolution” of 1688.
Plus own revolution in 1776. (Let’s not forget — the colonists were fighting for, among other things, the Rights of Englishmen granted in 1688.) Then came 250 years of American history: Marbury v. Madison, our Civil War and the 14th Amendment. All the way down to today’s US District Court judges who have checked Trump (as Lithwick so memorably puts it in the YouTube clip embedded above), with a “boop on the nose, [a court order to] stop what you’re doing and come into my court and explain yourself.”
Our constitution, not to put too fine a point on it, traces back to fundamental laws, written or unwritten, In America and in England, going back at least to Magna Carta in 1215. The laws have changed, and our understanding of the history of those laws has changed over the centuries. (Magna Carta, for example, is mostly out of date — it reflects a feudal system of land ownership — but it still has symbolic value; portions of it relating to due process of law are still on the books in England and Wales; and due process itself is still basic hornbook law in the US.) I would argue our constitutional principles trace back 800 years, but they’re given a local habitation and a name every day by judges, lawyers and juries in courthouses all over English-speaking world. I would also argue with Trump, we’re in danger of losing that.
So, yeah, I’m ready to read whatever Lithwick and Stern have to say about it all, and, especially, what Lithwick (or a headlne writer for Slate.com) puts like this: “How the American people can reclaim the Constitution—and the law—from this monarchical Supreme Court.” Their series can be hard to find online, but here’s a link to an initial portal page:
Lithwick’s July 18 companion essay, also titled “By the people,” is mostly hidden behind a paywall, but the gist of it is available in an excerpt from her lede. She has plenty of criticism for President Trump, aided and abetted by Chief Justice John Roberts’ 6-3 working majority on the Supreme Court. But she also suggests the court is on its own unlawful power trip. She begins with a down-to-earth — and, I believe, appropriate — metaphor:
The Supreme Court as currently constituted is the United States’ abusive boyfriend, constantly asserting the power to control every aspect of our lives while ignoring the actual rules governing its own conduct. If this court were your partner, making it forever more difficult to express your own preferences as it persistently intoned that it’s you that was the problem, you would pack a go bag and find a motel room.
And yet we stay. We wait for more. And with every term, that same Roberts Six ensures that the legislative branches have less power to make law, that lower courts have less authority to review presid.ential actions, and that all of the people have less access to the ballot box. The ratchet works in one direction: away from representative constitutional democracy.
For years, we have ended the Supreme Court term with our Slate readers and Amicus listeners imploring us: “But what can we do?” In this year’s special end-of-term series, we endeavor to answer that question. Our reply builds on the ideas we have tried to capture in our prior series on how to better cover the court, as well as how to think about the methodology of originalism: What can’t you do? You are not a spectator to American democracy, and you are not a passive recipient of American constitutional meaning. [Links in the original.]
Hence, added Lithwick, the podcast series tited “We the people.” She explains:
This series was born of decades of watching a Supreme Court that answers to nobody expand its own power. It is born of an American public that in 2026 lives with less liberty and justice for all than the generation that came before. It is born of watching a nation of immigrants judicially reverse-engineered into a nation of xenophobes. It is born of watching the project to expand the franchise to more voters morph into the means of throttling it. It is born of acknowledging an American public that overwhelmingly hates mass school shootings and big money in politics, and women bleeding out from miscarriages, and roving ICE raids, but must remain somehow forever trapped in these very horrors because we share the inexorable sense that if the Supreme Court does it, it’s not illegal.
All of this may sound like yesterday’s headlines, but Dahlia Lithwick has had Trump’s number for a long time. Anyone familiar with his career as a real estate developer and the civil law judgments against him will realize his basic contempt for the law and legal procedure. On Nov. 9, 2016, the day after he was first elected, Lithwick wrote a column headlined “Will Trump’s Rule of Law Be Our Rule of Law?”:
For those of us who believe […] in the basic tenets of constitutional democracy, in respect for the law, and the courts, and for neutral processes, Trump is the end of that line. These words that we use, due process and equality and justice have actual force and meaning. They are the tools and also the end product of the entire enterprise of democracy. They are the only bulwark against totalitarianism we know.
At the time, hardly anyone (except maybe then-Senate GOP Leader Mitch McConnell) could have predicted the Supreme Court would be taken over by hard-right ideologues. But any optimism Lithwick may have felt was tempered by her knowedge or the legal profession:
Lawyers are by definition small-c conservative, incrementalist, and cautious. We don’t do revolution if a strongly worded footnote would suffice. We believe in facts. We believe in neutral rules and principles of fairness. We believe in judicial independence. We will be more apt than anyone to try to shift along in Trump’s America, doing our best. Hoping to make it a little more just for the weakest around the margins.
When I saw that in November 2016, I thought it reflected both my sense of the lofty ideals of the 800-year-old Anglo-American constitutional tradition and my estimation of the trial lawyers I knew and juries I observed down home, who usually managed to weigh the facts and the law to arrive at a just verdict by following the day-by-day processes of law.
Magna Carta, due process and a ‘boop on the nose’
In other words, I’m afraid after 250 years we’ve allowed ourselves to go slip-sliding into a slow-motion coup. But In Lithwick’s inimitable words, the “small-c conservatives” of the legal profession have wielded enough “strongly worded footnotes” so far to hold the line against some of the regime’s most authoritarian exceses.
In another memorable squib, captured on YouTube by the Deep State Radio Network, Lithwick suggests footnote-wielding judges of the lower courts have had at least limited success in pushing back the regime’s more authoritarian measures.
We’re seeing judges step up, and the reason why this is important is because of two thngs: (One) [a] tiny fraction, tiny fraction of cases that are heard in the country go up to the US Supreme Court. They get resolved in the district courts, they get resolved in the courts of appeals. Those judges do yeoman’s work, yeoman’s work in pushing back on Trumpism.
She also gets to the heart of the matter, suggesting that when lower courts are following foundational principles of the 800-year-old tradition of Anglo-American common law when they put checks and balances on federal government overreach. She also employs some decidedly nonjudicial — and delightful — language when she says:
The more important thing, and we just keep forgetting it, is that those lawsuits and those judges are creating a record. They are creating a record for history of what has happened and why. That sounds very abstract and very far from where we started talking about fighting for the Constitution. But it is essentially important, both for storytelling and reminding people what the rule of law is, that we’re seeing judges around the country saying, “no, and no, and no, and boop on the nose, and come into my court and explain yourself to me.” And that is really, really important.
It’s not only important, it’s foundational to our 800-year-old system on law. I’m not a lawyer (and I probably wouldn’t get away with this flight of rhetoric if I were), but I think something very much like Lithwick’s “boop on the nose” was administered to King John of England when his rebellious barons forced him to sign the Magna Carta in 1215.
I was always one of those nerdy little kids who loved history. My ethnic heritage is Norwegian, so I grew up on the sagas of Erik the Red, Leif Eriksen and King Knut who (unsuccessfully) ordered the tides to roll back. So I guess it was foreordained that I’d major in history and English when I went off to college. I loved “Brit lit” (although I found Milton insufferable until grad school years later), and my undergrad senior seminar was on British constitutional history.
After some academic misadventures, including a brief run-in with law school (about as successful as King Knut’s with the tides of Denmark and England) as well as a change of majors at the MA level, I wound up specializing in Renaissance drama from the Quem quaeritis? trope of the 10th-century Easter mass to Shakespeare. But those undergrad seminars in con law were about to catch up with me.
You see, I finished coursework and started my dissertation when the Watergate scandal was in the news. We don’t ordinarily think of matters like Prince Hal’s relations with Falstaff in Henry IV, Part 2, and Henry V as dealing with constraints on royal, or executive power; but there they are, if only we look for them. And there was President Nixon, testing their limits as sure as Prince Hal roistering with Falstaff at the Boar’s Head Tavern. So I learned enough old Anglo-Norman “law French” to get around with and took a deep dive imto Tudor English jurisprudence.
Very quickly I found Magna Carta, signed in 1215 by King John. repeatedly violated by king and barons alike, frequently amended and ultimately considered the foundation of English common law. Says one clause, No. 29 in a 1297 amended version:
XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right. [Link in the original.]
This, then, is the essence of Dahlia Lithwick’s “boop on the nose.” The barons agreed to what amounted to a ceasefore; in exchange, King John agreed to accept procedural limits that in time would be considered the due process of law. Often honored only in the breach, Clause 29 remains an aspirational foundation of the Anglo-American system. It is quoted prominently, for example, in the American Bar Association’s primer on the rule of law. The concept was given further heft by a jurist named Henry de Bracton, who wrote a Latin treatise De legibus et consuetudinibus Angliæ (on the laws and customs of England) sometime in the 1250s. it is Bracton’s formulation, that the king must be “under God and under the law, because the law makes the king […] for there is no rex where will rules rather than lex” that has come down to us today, pun in medieval dog Latin and all.
According to Wikipedia, the common law procedures upheld by Magna Carta evolved over the years as the original charter was amended and adapted by successive parliaments; it didn’t fully gain its foundational status until it was championed by Sir Edward Coke, chief justice of the Court of Common Pleas under King James I and compiler of Coke’s Institutes, a basic hornbook of case law. In the Institutes, he recorded his quarrel with King James in a case known (in lthe original aw French) as Prohibitions del Roy. Coke argued:
[…] that the law was the golden met-wand [measuring stick] and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King ought not to be under any man but under God and the law].
Coke managed to overturn James’ ruling in the case, but he was sacked from his position on the King’s Bench not long thereafter. The principles of judicial review and parliamentary supremacy remained controversial until they became settled law, along with other Rights of Englishmen, in 1688. They live on today in the US Bill of Rights and Article I of the Constitution.
Every few years lately, it seems, we are treated to another constitutional crisis, and the ancient rights become controversial again. We are in the middle of such a crisis today, and we were when I was a grad student. I remember alternating the televised Watergate hearings with hours in the grad library reading The Dialogue in English, betweene a Doctor of Diuinitie and a Student in the Lawes of England, a1593 hornbook called Doctor and Student for short.
So instead of classical literary criticism, my dissertation wound up being about a mixture of lit-crit, history and contemporary public affairs. I was already writing a column for the UT Daily Beacon, and I liked to joke I was the only grad student in English at UT-Knoxville whose dissertation had a news peg. In the dissertation I wrote:
As recently as August 23, 1973, a leading legl authority in the United states who had a basic constitutional point to make recalled that scene between Lord Coke and King James, and quoted Bracton — translating it, incidentally, into slightly stronger language: “The king ought not [to] be under any man but under God and the law,” according to newspaper accounts — and a staff writer for the Scripps-Howard newspaper chain came away impressed with the “sense of history” hovering in the courtroom in spite of its “airport modern” decor.1
That was 53 years ago, and, apparently, what goes around comes back around.
I haven’t seen Bracton or Sir Edward Coke quoted recently, but the Guardian’s Washington correspondent recently quoted Lawrence Tribe of Harvard law school about another English monarch: “Even King George III had a parliament to worry about, but King Trump, as the supreme court would have it, really needn’t worry about much at all.”
And an unsigned staff editorial in the Guardian takes the royal metaphor back even further, suggesting the Trump regime “has turned the clock back, reinventing the modern executive as a feudal court.” It adds:
What really distinguishes Mr Trump’s court of fiat and favourites from its historical precedents is its sheer reach and impact, as evinced by the illegal Iran war. Important constraints of course remain, and must be defended. But as the US celebrates 250 years of independence under a president who wields more power than any monarch, it must ask itself how to reassert the checks he has destroyed.
Good questions! They’re good questions now; they were good questions in 1973, and they were good questions in 1607 when Sir Edward Coke quoted a 13th-century jurist to King James I. They were good questions in 1215 when King John’s barons “boop[ed] him on the nose” and forced him to grant rudimentary rules of due process, and they are good questions any time a wannabe despot tries to substitute his will for the orderly procedures of a constitutional small-d democracy.
Notes
1 Cited in my dissertation to Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke, 1552-1634 (Boston: Little Brown, 1957): 302-06; Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (New York: Oxford, 1968): 243-44; and Richard Starnes, “Sirica Chamber Emits ‘Blahness’: Unlikely Setting for Major Face-Off,” Knoxville News-Sentinel, Aug. 23, 1973: 1-2.
Links and Citations
American Bar Association, “What is the Rule of Law?” ABA, Chicago https://www.americanbar.org/advocacy/global-programs/who-we-are/rule-law-initiative/what-is-rule-of-law/.
Steve Bloomfield, “Trump says he will dismantle the ICC ‘brick by brick’. It could be his most chilling move of all,” Guardian, July 24, 2026 https://www.theguardian.com/commentisfree/2026/jul/24/icc-international-criminal-court-trump-putin-netanyahu.
Dahlia Lithwick. “By the People,” Slate, July 18, 2026 https://slate.com/bythepeople/.
__________, “Judges Step Back on Trumpism,” Deep State Radio. DSR Network, n.d. [ca 2026], https://www.youtube.com/shorts/qrkl5m-ZxR0.
__________, ”Will Trump’s Rule of Law Be Our Rule of Law?” Slate, Nov. 9, 2016 https://slate.com/news-and-politics/2016/11/trumps-threat-to-the-rule-of-law.html.
Robert Tait, “‘King Trump’ is stronger than ever after US supreme court bolsters his agenda,” Guardian, July 2, 2026 https://www.theguardian.com/us-news/2026/jul/02/us-supreme-court-donald-trump-power-grab.
“Trump’s wealth and power: a medieval court wreaks havoc in the 21st century,” staff editorial, Guardian, July 1, 2026 https://www.theguardian.com/commentisfree/2026/jul/01/the-guardian-view-on-trumps-wealth-and-power-a-medieval-court-wreaks-havoc-in-the-21st-century.
[Uplinked July 26, 2026]
Ordinary Time 