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Melissa and Kate run through the latest legal news, including the Court greenlighting the dismantling of the Department of Education. Then, they speak with NYU law professor Rachel Barkow about her book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration.

Hosts’ favorite things:

• Kate: Legalistic Noncompliance, Leah Litman and Dan Deacon (University of Michigan); Trump’s Plans to Put Emil Bove on the Supreme Court, Jeffrey Toobin (NYT); Bonus 167: The Case for Not Writing, Steve Vladeck (One First)

• Melissa: Wedding People by Alison Espach; What Reading 5,000 Pages About a Single Family Taught Me About America, Carlos Lozada (NYT); The Kent Family Chronicles, John Jakes; Emily in Paris walking tour

TRANSCRIPT

Leah Litman [AD]

Show Intro Mr. Chief Justice, please, report. It’s an old joke, but when a argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Melissa Murray Bonjour and bienvenue à la Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I am Melissa Murray, fresh from a sojourn in Paris.

Kate Shaw Which was probably obvious from your opening. I am Kate Shaw, and it’s just the two of us today. And we’ve got another two-part summer episode for you. We will start by bringing you up to speed on various developments in the executive branch and also in the courts. And we will then bring you a conversation that Melissa and I recently had at NYU with Melissa’s colleague, Rachel Barkow, about her terrific new book, Justice Abandoned, How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration.

Melissa Murray First up, periodiques or news. Just because it’s the middle of July doesn’t mean that the Supreme Court has stopped handing down enormously consequential rulings. In fact, it is continuing, maybe even doubling down on its penchant, actually, let me just say that the English way, penchant for siding with the Trump administration against the lower federal courts and bolstering the Trump administration’s efforts to dismantle the federal workforce even in clear violation. Of congressionally enacted statutes and the Constitution, and more importantly, they are doing all of this without a word of explanation.

Kate Shaw The most egregious example of the phenomenon Melissa just described was an order issued last Monday green-lighting the Trump administration’s gutting of the Department of Education. Just to refresh your recollection about recent developments, so back in March, President Trump issued an executive order directing the Education Secretary to, quote, “…to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the department of education and return authority over education to the states and local communities.

Melissa Murray Appropriate and permitted by law is doing a lot of work there, or not, as it were. In any event, this EO formalized various campaign promises that Donald Trump made to eliminate the Department of Education and indeed came on the heels of newly confirmed Education Secretary Linda McMahon’s announcements of the firing of about half of the Department of Education staff, which she explained was a first step in the direction of the total elimination of the agency. The EO was then followed by a transfer order purporting to transfer a number of Department of Education functions to other agencies. Not surprisingly, several states, local school districts, and teachers unions took all of this personally and filed a lawsuit in the District of Massachusetts in which they argued that the president cannot, by fiat, eliminate a cabinet agency without congressional intervention. This unilateral action they maintained. Violated the Separation of Powers, the Take Clare Clause, and the Administrative Procedures Act.

Kate Shaw And the district court did, as district courts tend to do, a lot of fact-finding to really, you know, probe these assertions. So it took in a great deal of evidence that it would be impossible for the agency to carry out its statutorily required duties with these massive cuts in place. And so the court concluded that despite these half-hearted arguments the government made about how all of this was just about reorganization and efficiency, not about really killing the agency. Despite lots of very explicit statements to the contrary by both the president and the cabinet secretary, the court found, quote, the record abundantly reveals the defendant’s true intention is to effectively dismantle the department without an authorizing statute and that the terminations would prevent the department from, quote carrying out its statutory functions. The district court accordingly issued a preliminary injunction blocking these massive cuts, and the first circuit declined to stay that preliminary injunction. So of course, the administration ran to the Supreme Court where it requested emergency release.

Melissa Murray And guess what? Spoiler alert. They got it. On Monday, with nary a word of explanation, not un peu, the court granted the administration’s request to stay the injunction, meaning that the administration can go about its project of destruction while the litigation proceeds. And I just want to reiterate this. The court has not decided the substantive question of whether the administrative’s actions violate the separation of powers or the take care clause or the APA. And maybe they might eventually conclude that all of these actions do violate the law and the constitution, but nonetheless, they have allowed the administration to move fast and break things for now. And they did so without explaining why it makes sense to allow the administration to take these actions even if they might at a later time be found impermissible. And it’s reminding me a lot of the circumstances of Allen versus Milligan, where the court allowed those districting maps, which it later found to be impermissable gerrymanders. To be used in the midterm election. Similar vibe going on here. And maybe there are some good reasons for this. So here are two possible reasons. Both of them are completely cynical. Maybe there is a majority of this court that doesn’t think that any of these actions offend the Constitution or any of the statutes, which honestly is kind of frightening because textualism. Or maybe literally, this court can’t be bothered to give a reason for its decisions All of these justices have summer junkets that require their immediate presence somewhere else. And we just can’t take the time to let us know what’s going on. To which I say, fantastique, amazing.

Kate Shaw Melissa is just off a junket, and yet she found the time to carefully parse what the Supreme Court has done.

Melissa Murray Rolled off a plane and here I am.

Kate Shaw Yeah, and they cannot be bothered to do the same. You know, as we think about different theories for why the court gives this kind of, you know, nary a word of explanation, I am reminded of something that Will Bode said in this roundtable that we did in early July. And he basically was just like, you know, speculating when it comes to the shadow docket. He said, quote, I just don’t think the court always knows or agrees why it’s doing what it’s doing. So I thought that was actually a very revealing moment. And it’s like. The court just looks at some of the stuff the administration is doing and what the lower courts have done and just basically it’s like, the vibes of these lower court orders seem wrong. I think we’re going to side with the administration and we’re just not going to tell you why. And maybe some of them think on the merits administration is okay. Some are, you know, called to dinner in Italy or whatever. And some maybe have jurisdictional objections. There’s no standing. There are other kinds of jurisdictional obstacles. Who knows because they don’t tell us.

Melissa Murray We should be clear. We are talking about the court too sweet, but really we ought to be just talking about a certain number of justices, because in fact, there were three justices who very much decided to explain at least their objections to what the majority is doing. And Justice Sotomayor wrote for the three liberals, and her dissent was absolutely unsparing. She said, quote, when the executive publicly announces its intent to break the law and then executes on that promise, it is the judiciary’s duty to check that lawlessness. Not expedited. Two lower courts rose to the occasion preliminarily enjoining the mass firings while the litigation remains ongoing. Rather than maintain the status quo, however, this court now intervenes, lifting the injunction and permitting the government to proceed with dismantling the department. That decision is indefensible. It hands the executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way, the threat to our Constitution’s separation of powers is grave. She then went on to say, quote, the president must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution separation of power. Yet today, the majority rewards clear defiance of that core principle with emergency relief. Because I cannot condone such abuse of our equitable authority, I respectfully dissent. Still respectful, still trying to be collegial.

Kate Shaw I mean, the 19 pages that preceded it, I was not expecting to end her, to land that thing with her respectfully because she was not feeling a lot of respect for her colleagues. But you know what? Actually, taking the time to document your legal views about a really important dispute that comes to you, that is respectful. It’s respectful of litigants. It’s respectful of the administration, it is respectful of a court as an institution. She probably had summer junkets to attend to too. But you know what? Like she understands her role here. And I was so grateful that she wrote at the length that she did and also that she did it with her two Democratic colleagues in dissent. But of course, again, the majority just absolutely silenced. So the quotes that Melissa just read from the Sotomayor dissent capture in very general terms what this dispute is about and what is at stake. But just to be clear for a minute about the specifics, It’s like. The Department of Education was created by statute. The components of the Department of education that do things like enforce civil rights and manage student loans, they were also created by statutes. There is a specific statutory provision that actually does give the secretary a good deal of authority to reorganize or even discontinue some statutory entities if she follows certain steps required by the statute. But it also explicitly prohibits the secretary from abolishing any other entities and Sotomayor talks about this in her dissent? Well, it turns out the secretary did not follow the steps required for her to exercise the power that she does have here. And the cuts that she ordered functionally eliminate entities. The statute specifically precludes her from eliminating. So it certainly seems to me that this is a case in which it is at least far from obvious that the government will win on the merits. And to me, it seems really obvious that it should lose, though a lot turns on how willing you are to penetrate these bad faith representations that the Government is making about why it is doing what it is doing. Because there’s no reasoning, we actually don’t know what the court concluded.

Melissa Murray So what does all of this mean on the ground? It’s honestly hard to know. In theory, this is preliminary. The challengers could win at the end of the day, as I’ve said, on both their constitutional and their statutory arguments. But unless there’s another lawsuit that fares better at SCOTUS in the short term, the Department of Education is moving forward with all of these cuts that will have catastrophic consequences for the service that the agency provides. And will effectively dismantle the agency. And again, to be clear, the services that this agency provides are numerous and they have real practical consequences on the ground for lots of people. The Department of Education manages federal student financial aid. It administers federal grants to both K through 12 and higher education institutions. It enforces anti-discrimination laws in the context of educational institutions. It administers the Individuals with Disabilities in Education Act, the IDEA, which requires schools to provide a free and appropriate education even for students with disabilities or learning differences. It creates programs for bilingual education and English language instructions, among many other things. This is going to have a real, real hit on real people’s lives, including some of the most vulnerable people, children, in our society. Some of these functions will certainly be transferred to other agencies like the Small Business Administration and the Health and Human Services Administration, agencies that have never really done this before. So yes, there’s going to be a lot of ramp up time as they get up to speed, but other services and other functions I think are likely ultimately to be privatized, which was clearly the intent, or at least partly the intent of the EO, which references. The bank Wells Fargo and says that the Department of Education is not a bank, and it must return bank functions to an entity equipped to serve America’s students. So that’s how the EEO purports to address the question of the administration servicing a federal student loans. Some of these functions may be handled by the states, but whatever ultimately happens with this litigation, it’s absolutely impossible to unring the bell that the court has rung here by staying the lower court in Junction.

Kate Shaw And on the impossibility of unringing the bell point, I thought Kim Lane Shepley had a really evocative metaphor in a piece she wrote for the contrarian about this, and I want to quote it in its entirety. So she says, quote, think of the executive branch before 2025 as an aquarium in which various agency fishes were swimming around acting like a government. Trump inserted a blender into the fish tank because he asserted that he has the constitutional power to create fish soup. That is bouillabaisse for you, Melissa. Um, so… Thank you. It matters if the court… I think it’s bouillabaisse. Bouillabresse. Okay. So it matters, says Kim, if the Court allows the blender to be turned on while it decides the legal question of whether the Constitution, in fact, permits the president to make bouillabs. Though it’s easy to turn an aquarium into fish soup, the reverse operation is impossible. So allowing Trump to turn on the blender while waiting for an answer about the soup decides the case. Literally I think that is what the administration has been doing since January 20th, but in particular in this case. Turning on the blender and the lower court saying like no no no you can’t do that we have to decide if you can make the soup and the Supreme Court saying go ahead make the soup.

Melissa Murray Let them eat soup. I’m just going to ride this metaphor.

Kate Shaw A little slice of baguette with some delicious melted gruyere atop it like for all we are best for all

Melissa Murray You’re just, you’re so lucky I can’t find my beret.

Kate Shaw I actually would love you to pop that beret right on right now, but I know you just got back from the airport.

Melissa Murray I looked all morning. I looked all morning for it. Anyway, as our Ami de la Pod, Steve Vladeck has detailed, it is very hard to square the court’s treatment of the Trump administration’s approach to the Department of Education with its approach with regard to the previous administration. Recall that when Biden’s more modest student loan forgiveness plan was put on hold.

Kate Shaw Not a blender, not a blender.

Melissa Murray Did not put a blender in there. The Biden administration asked the Supreme Court to allow… It to implement its student loan policy while the case proceeded, and weirdly, it left those lower court injunctions in place for six months, basically icing the whole federal student loan relief plan as it considered the case. And ultimately, the court found no standing in one of the cases and then really stretched of mine standing in the other and then ultimately found the whole plan invalid. Under what Elena Kagan called the made up major questions doctrine. So, yeah, they’ve basically hit pause on the administration in the past, but not here. And again, regardless of the ultimate outcome on the merits, the very, very different interim treatment of these two presidential efforts, both involving the Department of Education, certainly won’t help in dispelling the impression that this court is in the bag for this administration. I don’t make the rules.

Kate Shaw Nope. All right, so this particular shadow docket order involving the Department of Education follows an earlier July order allowing the administration to move ahead with mass layoffs at other federal agencies. So this is of a piece with that earlier intervention. So as to that earlier July Order from the court, it is responsive to a February executive order issued by President Trump directing agency heads to begin implementing these large-scale reductions in force. And in what is now a familiar two-step As happened in the Department of Education case, District Court reviewing a challenge to that order, carefully reviewed it, temporarily blocked its implementation. But on July 8th, the Supreme Court stayed that order and allowed these reductions in force to begin immediately, so more fish soup in all of the federal agencies.

Melissa Murray Now this particular SCOTUS stay happened before our last episode, but the fallout has continued over the course of the past week as agencies like the State Department began eliminating entire bureaus and dramatically reducing the capacity of U.S. Diplomatic and humanitarian work all over the world. And because this was the Trump administration, the process was predictably chaotic. So some bureaus that had been told that they would be spared actually received notices that they weren’t, in fact, being eliminated. People learned in real time that they were on or off lists based on whether they could access their email in the department. So there was just a sort of general atmosphere of sadism and incompetence. So what to say? Listeners, the practical consequences of this, I think, are actually going to be pretty profound. And you may feel them, too, when you can’t get your passport renewed. Or Americans can’t be quickly evacuated from a country or a region where conditions are deteriorating or when we’re all suffering from the global fallout of the wholesale elimination of generations of diplomatic expertise. So if that happens, when that happens let’s all remember to thank our good friend, friend of the pod, ami of the core, John Roberts.

Kate Shaw Because the assist of the Supreme Court majority has been essential, right? The sine qua non of all of this actually going into effect. And it’s not just Trump. It is Roberts and the other conservatives on the court. So before we leave this topic, we wanted to actually flag and briefly address a question from a listener that we got last week. So the listener is Conor Morgan, who just graduated from Harvard Law School and has been working at the Office of Special Counsel. And he basically raised the question. Regarding these mass firings in the executive branch. So I’m going to read part of that question. He said, quote, Do you think that terminated civil servants might have more luck, at least in the lower courts, if they press a due process argument? And if so, why do you think they haven’t? And he elaborates that he got interested in this conflict when he was working at the Office of Special Counsel. And he actually wrote a very good short piece on the On Labor blog and also has a longer law review style article up on SSRN. Again, this is Connor Morgan. So it’s a great question, Connor. I confess I haven’t had a chance to read your full draft article. But, you know, it has long been understood that these kinds of challenges by civil servants to their terminations are channeled through the Merit Systems Protection Board or MSPB. But I think that the argument that these due process claims can be raised directly in federal court in lieu of or in addition to MSP proceedings is one that absolutely should be pursued. You know, I think it’s no accident that one of the earliest targets of the Trump administration was the MSPB, right? Board that actually adjudicates these challenges to civil servant firings and other kinds of personnel actions in the federal government. So, I mean, query whether the MSPB is actually a body that at this point, with the Supreme Court having let Trump actually fire members of the board, is a venue in which civil servants can get meaningful relief. But there’s a constitutional due process entitlement that I think these terminations absolutely do not comply with. So whatever large-scale constitutional challenges are being made and of course there are many individual due process challenges I think are an important additional avenue that should be pursued, so I totally agree with a kind of thrust of this comment slash question.

Leah Litman [AD]

Melissa Murray Let’s stay on the firing beat for a minute. We learned just last week that among the thousands of federal workers that the president and his team have tapped for firing, among them is Maureen Comey, who prosecuted Jeffrey Epstein associate and consort Ghislaine Maxwell. She is also the daughter of former FBI director Jim Comey. She’s also the lead. Prosecutor on the Shawn Diddy Combs trial that recently concluded in the Southern District of New York. So long time member of the Southern district of New York’s prosecutorial team. I think some questions maybe about whether this is part of just a general reorganization or maybe there is something targeted about this.

Kate Shaw And targeted specifically with respect to Comey, right, because she is a member of the Comey family, with respect the sort of growing scandal around the Trump administration’s handling of the Jeffrey Epstein dossier and client list and everything else Epstein related. So, you know, we do not know, but we wanted to flag this since it does seem that the president and firings is the theme of this episode. And on that beat, we wanted to conclude by noting in firing or possible firing news this week. The president’s continued, very public consideration of firing Fed Chair Jerome Powell. Now, listeners likely know that Trump and his team, with their aiders and abettors at the top of Article 3, have embraced a virtually limitless vision of presidential power under which the president has the constitutional authority to fire essentially any high-ranking official, regardless of norms or statutory language, constraining that authority.

Melissa Murray I thought there was a fed exception.

Kate Shaw Well, this is the question. We’re maybe about to find out. We might be in the, I don’t know, finding out phase soon. Have we been in the fuck around phase for a while? Possibly. I think we have been. So anyway, so he’s toying with this idea publicly. Trump is. He has been airing his displeasure with Fed Chair Powell, whom he appointed really since his first term, but the rhetoric has escalated in recent days. He has clearly incensed over the Fed’s failure to cut interest rates. Which Trump would like them to do. And there is also now this, I think, pretty spurious set of complaints that Trump and underlings have raised about the costs in renovating the Fed’s building. But obviously, that’s not the source of the displeasure. Regardless, things seem to potentially be coming to a head.

Melissa Murray It was reported that last week in an Oval Office meeting. President Trump showed Congressional Republicans a draft letter in which he reported to fire Powell, but he said he hadn’t yet decided whether he would follow through. The reporting on this again has not been crystal clear, so we don’t know whether the letter would remove Powell as chair and designate a new Fed chair or whether it would try to remove Powell from the Fed altogether. Powell’s term as Fed chair is up in 2026 and his Fed term is up 2028 Actually, the legal questions around removal are a bit different depending on what the president would actually try to do in the circumstance. He’s on stronger footing when it comes to the chair designation, although it’s not rock solid. He does have a more uphill battle if he attempted to remove Powell altogether from the Fed. And firing Powell does sound like he’s talking about removal full stop. So again. We are just simply commenting on the reporting that has been public and perhaps a little constitutional question brewing.

Kate Shaw It seems like actually reasonably likely. So as Melissa said, the specifics aren’t that clear. They’re a little hazy. I’m not sure Trump even knows. It’s a little bit like maybe the Supreme Court doesn’t give us any explanations because it doesn’t actually know why it’s doing what it’s going. Maybe that also applies to Trump.

Melissa Murray It’s called the macros of judging. Shift F One, stay the injunction.

Kate Shaw Yep. Yep.

Melissa Murray Shift F2, Biden administration. Allow the injunction to continue.

Kate Shaw Yep, that is a good theory. Anyway, so enter SCOTUS, which actually, unusually, did give us a little bit of reasoning, albeit not terribly satisfying in a shadow docket order in May, actually regarding the president’s authority to remove members of independent agencies. So that case involved firings of members of the Merit Systems Protection Board, which we were just talking about, and the National Labor Relations Board. So in that case, Trump versus Wilcox, the court wrote a couple of pages of explanation, seeming to not conclusively overrule, but pretty clearly repudiate and lay the groundwork for overruling the 1935 decision, Humphrey’s executor, and basically saying at least in the short term, the president can go forward with firing members of independent agencies. But it then went out of its way to say it wasn’t endorsing presidential power to remove members of the Fed. So let me quote that language from the court’s Wilcox order, quote, Respondents contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve’s Board of Governors or other members of Federal Open Market Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States. That’s all the court said. You know, again, more than it said in the Department of Education case, but way less than actually fully develops and defends this position that the Fed is just fundamentally different. And to be clear, some very smart people think that’s kind of horse shit that the fed is totally different from other independent agencies. They point out that the FED is actually totally different in legal structure from the First and Second Bank of the United States. And actually, the Fed looks a lot like other independent agencies, like whose logic the court’s Wilcox order seems to extend to. So the court seems here to be scrambling to manufacture some kind of justification to avoid spooking markets. But it’s now out there that the court says that maybe the Fed is different and Trump can’t just summarily fire members of the Fed. Powell has previously said that he would sue if Trump tried to fire him, so We may yet find out what exactly the court will say when faced with this question. And you know, I do think the one thing global markets love is a lengthy and protracted period of uncertainty over who is running the most important central bank on this planet Earth. So I think that’s what we might be barreling toward.

Melissa Murray So what you’re saying, Kate, is that global markets do not love the prospect of flirting with a worldwide depression. Is that what you were saying? We’re going to find out. I’ll just say, when I was in France, all people wanted to talk to me about when they found out I was American was le tarif and like the tariffs. And this was especially true when we went to. Champagne for a bunch of different champagne tours. I learned a lot about sparkling wine and like how champagne is different and why you can get Prosecco and an Aperol spritz because it’s essentially swill according to the people in champagne, but you cannot do champagne and Aperola spritze because why would you adulterate it? I learned just a lot. I learned how to make champagne and I learned why Prosecco is basically garbage and that we have to put it to like an aperol spritz on top.

Kate Shaw I love Prosecco.

Melissa Murray I like proseccoes. I thought this was a bit extreme. But they all wanted to talk about the tariffs and how expensive it was going to be to export their products to the US. So yeah, I think you’re exactly right. The world is watching as we watch Jerome Powell and Donald Trump on all of this. Developing story, we will stay on it.

Kate Shaw We have actually one more developing story, which is that while we were recording, news broke that Third Circuit nominee, the controversial and embattled Emile Beauvais, his nomination has maybe proceeded to the full Senate. I say maybe because although committee chair, Chuck Grassley did announce the nomination had proceeded, ranking member, Dick Durbin. Also at the same time has said maybe not so fast because Republicans on the committee maybe broke some rules in advancing the nomination. Anyway, you know, there is enormous and growing resistance to the Beauvais nomination. It is incredibly high stakes, not only because it’s for a lifetime appointment on the Third Circuit, but because there is significant indication that Beauvais would be on a short list, maybe at the top of a short list for a Supreme Court vacancy, should one arise. And so it matters a great deal. What happens with this nomination. So this is a developing story. We will stay on top of it.

Melissa Murray I have some ideas of the person who might step down to make way for a possible Emile Beauvais Supreme Court nomination. Maybe a previous Third Circuit judge who would be happy to cede his spot on the court to another Third Circuit Judge. Hmm.

Kate Shaw Even if he’s there for like 30 seconds.

Melissa Murray Anyway, folks, that’s all we have for news. Right now, we’re going to jump into an awesome conversation that Kate and I had with my colleague, Rachel Barkow, of NYU Law about her fantastic new book, Justice Abandoned, How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. Actually, I think Rachel could write a whole series of these, like Justice Abbandoned, How the supreme court ignored the constitution and enabled the dismantling of the Department of Education. Justice Abandoned.

Kate Shaw The Voting Rights Act.

Melissa Murray Like all of these.

Kate Shaw Equal protection.

Melissa Murray Like, this would be, like, a trilogy-poor her.

Kate Shaw You’re right. It’s a series. No, more than a trilogy. This is like a 12-part, 12-volume series. We’re going to take a quick break before our conversation with Rachel. But first, Vote Save America has launched a brand-new pilot program to recruit candidates from Arizona, North Carolina, and Texas. We are talking school boards, city council, state legislature, the kinds of races that shape communities and build the bench for long-term democratic power. 2026 could definitely be a turning point, but if no one is running, Democrats can’t win and that is where you come in. It is the best and most effective way to get involved. And Vote Save America has great partners on the ground who have already identified races that need candidates and they’re here to connect you with tools and training and support to get started. That is how to flip states. That is to fight back, be the candidate your state needs, run for office. Sign up at vote save america.com slash run to learn more. Paid for by Vote Save America. You can learn more at vote save america dot com. This ad has not been authorized by any candidate or candidates committee.

Leah Litman [AD]

Melissa Murray We are here with Rachel Barkow, professor at NYU Law, and we are discussing her fantastic new book, Justice Abandoned, How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. So to dive right in, we are typically accustomed to critiquing mass incarceration as something that we could attribute to the work of the political branches. So we might blame Congress, for example, for passing draconian drug laws that enable and facilitate mass incarceration. We might blame the president for using the bully pulpit to advocate for more punitive measures for those who are criminal defendants, or even for pushing for an expansion of the drug laws, or other laws that would be part of the system of mass incarceration. We tend to overlook the Supreme Court, right? But as you say in the book, the court has been a midwife to mass incarceration in a number of different ways. So. Can you explain to us what the court’s role has been in cultivating the ground that has allowed mass incarceration to flourish? And why in particular do you think the court has been overlooked as an agent of this scourge?

Rachel Barkow So first I should say that the Constitution, if you just kind of read it, you will be amazed at how much of it talks about criminal justice proceedings and protections. Like it really is if you kind of just go through, I’ve done this, highly recommend it, if you look at the Bill of Rights, you realize they’re pretty obsessed with protections in criminal cases. And in fact, there’s a lot of founding era history. About thinking of government abuse using criminal process against people. So I guess I just wanna start by saying it wasn’t like the framers of our government didn’t realize that people could get excessively punitive and we really need to make sure we protect rights in that context. So we have it in the document. And the question is, you know, where has the court been in terms of protecting it? And I think that one of the reasons that we haven’t really kind of focused on the Supreme Court and its role I think there’s two reasons. So one, I think people have given the court, when it comes to criminal cases in particular, you know, there’s the two high profile like Warren court treasures, where people think, okay, there is MAP versus Ohio, which is the case where the Supreme Court says, when evidence is obtained through unconstitutional searches, you exclude it from somebody’s case. You know, that is a big decision. It’s a huge defendant’s rights protection that comes in the 1960s. And it also decides in the 1960s, the Miranda case where people have to be read their rights. And kind of MAP and Miranda, I think, gave the court this, you know, I think people just think, wow, the Supreme Court is where you go to protect defendants’ rights. MAP, Miranda. And I think there has been kind of the cases that I write about, you now, like people don’t talk in their day-to-day life like, hey, how about Salerno? You know, that we will talk about, You will after today. But Salerno, where the court decides you can detain somebody pre-trial, in spite of the presumption of innocence, just because they’ve been arrested for something and the claim is they’re dangerous. People don’t think about those cases, they think about the big ticket ones. And I think it’s these cases that I talk about in the book that have been huge for allowing mass incarceration to flourish, but they’re not high profile. And then I think the other aspect of it is that. We’ve become used to them. So mass incarceration takes a while to get going and kind of for people to really notice and pay attention to it. And I think we’re there now. But at the same time, we have become completely used to all the things I describe in the book. So plea bargaining, everybody just assumes, well, that must have always been the case. Pre-trial detention, of course you can detain somebody because you think they’re dangerous, I think is the assumption. Not realizing that actually that is something until the court said it was okay, no one thought was okay. Overcrowded prison conditions, deplorable conditions, long sentences. You know, all the things in the book are relatively recent in the last 50 years and no one thought they were constitutional before that. But by the time we get to where we are in America today, people take them for granted. And so I think no one kind of looks back to think, oh wow, you know, actually, had we stuck to our constitutional principles, the court would have said none of that was okay. And I think if people look closely at this I think the court will start to get some deserved blame for where we are.

Kate Shaw So maybe let’s drill down in some of the cases that you talk about. So as you alluded to, the book is focused, as each chapter focuses on one Supreme Court case, and I think selected because they’ve been uniquely destructive in their impact, and also they are all just, as you tell it, failures as judicial craft, that they are very difficult to defend under any recognizable theory of constitutional interpretation. So, maybe just I’ll list briefly the six cases. Salerno, which Rachel just mentioned, Borden-Kircher versus Hayes, Harmelin versus Michigan, Rhodes versus Chapman, Terry versus Ohio, McCleskey versus Kemp. Now, none of these are like Miranda-level household names, but some of them are relatively more familiar, and then some of the actually are, I think, kind of deep cuts. People may not know the cases or their names, although they’re enormously important, both individually and kind of collectively, in constructing our present wildly overly punitive and carceral state. So, maybe just to ask about both impact and method, Salerno might be a good place to start. So, tell us about Salernos, and I think maybe we then want to talk a little bit more about kind of methods of interpretation we sort of see on display in all of the cases that you highlight.

Rachel Barkow Yeah, so Salerno is a case that I like to talk about as an example of this because it is really truly outrageous. So we should start by kind of setting the scene. It’s the end of the 1960s. Nobody, if you asked anyone, can you detain somebody who’s just been arrested because you think that they might commit another crime that they present a danger? And everyone would say, well, you can’t do that. You can’t that. But maybe we should be able to do that, Wouldn’t it be great if we could do that? But nobody thought it was constitutional. But it’s the end of the 1960s and crime rates are going up. There’s all kinds of protests that turn into riots around the country. And Nixon is running for president and he’s running on this law and order ticket. It’s another theme that will come up in Terry versus Ohio, which is decided in 1968. So the court is part of the election in 1968, there are impeach Earl Warren signs around the county. And Nixon and George Wallace are basically saying, this court is outrageous, we’re running on law and order. So when Nixon gets elected, he’s like, okay, this is great, but what do I do about crime? Because the president of the United States doesn’t really do a lot about crime, what could we possibly do? And they come up with this idea that they’re gonna write a law for the District of Columbia. That’s gonna be the kind of test law. And they’re going to say that in this DC law, you can detain somebody after they have been arrested. Pretrial. Forget the presumption of innocence. We’re gonna let people just get locked up at that point and they know what they’re doing has never been done before So they of course what would anybody do if you’re trying to do something you haven’t done before and you want to persuade people? You write a law review article. So he actually has he has his attorney general John Mitchell writes a law of the article trying to justify this. It is truly I you you should read it Just for how bad it is. It’s really bad. Like it’s he’s like well, you know, I I think this is okay. I mean, there’s no real evidence that anybody thought it wasn’t okay. There is, actually, if he had looked at the history. It’s pretty bad. But he writes this Law Review article, and they ask someone in the Office of Legal Counsel help draft the D.C. Law. One of the people who helps do that is William Rehnquist, whose name you might know, because he’s gonna later become the Chief Justice, who unbelievably is gonna uphold this law. All right, so. He helps draft it, they put it in place, right, and it’s the first time ever that’s, but it’s actually that first one because they know they’re not supposed to do it. It’s very narrow, right? It’s like you’ve gotta prove that the person actually committed the crime. There’s kind of a high evidentiary proof. There’s a limit on how long you can be detained. 60, you know, no more than 60 days. It’s got a lot of protections in there, but it still pretty dramatic, but it has a lot on narrowing principles. It ultimately gets upheld, and then, as soon as that happens, States are like. Awesome, we’re gonna do the same thing. So it’s doing exactly what Nixon wanted. States start to copy it and eventually Congress says, we’re going to do it at the federal level too. We’ll draft a federal version of this thing. The federal version has none of the protections in it. It’s super sweeping, there’s no limit on how long you can be detained pre-trial. There’s none of that proving that the person committed the crime. There’s all kinds of presumptions of dangerousness written in there. It’s a very sloppy law. But they draft it as part of this 1984 bail legislation. And then the Supreme Court has to decide if this is constitutional. And it gets before the court in the test case for this that the government decides to bring. Because remember, they kind of know this is not resting on really strong constitutional grounds. So if you were doing that, what would be your ideal test case? You would pick the leader of the mafia, right? You would one of the leaders. So in this case, it’s the Genovese crime family. It’s Anthony Salerno. Known as Fat Tony. So Fat Tony and his lieutenant, Fish, are the two that they want to detain them pretrial because they are running a mafia family, all right? So that’s pretty good if you want to say, you know, you let them out, they’re kind of a danger. So they really want this as their test case, and they want it so bad that they ignore the fact that Fat Tony had already been convicted for a series of other crimes while the case was pending. So he was already sentenced to a hundred years incarceration. So he’s no longer in pretrial detention But the government tries to tell the court no, it’s still a pretrial attention He hasn’t started serving that other sentence, right? So first of all, they are like playing fast and loose with the record, but the worst part is his lieutenant fish Fishes out they they let fish out because they signed him up as a cooperator So he is cooperating with the government bringing in other cases He’s not even in pretrial detention, all right? But the government knows a good test case when they see it, so this is the case they want. The case gets to the Supreme Court. The Supreme Court, in an opinion written by Chief Justice Rehnquist, says, I see no problems with this law. Because, you know, it’s not punishment. It’s not a punishment. We don’t care about the presumption of innocence doesn’t apply in this context. This is just a regulatory measure. Even though the people who are detained pretrial, they’re in the same facilities as people who are serving. Their sentences after conviction. It’s the same buildings, it’s the same places, everything is the same. It’s just the court saying that it’s different. I wish I could characterize exactly how poorly written this opinion is and kind of do justice to how bad it is. But it’s bad, it is a bad opinion. It’s fun to teach because it’s so bad. But it is the law, it became the law. And after it’s decided… Then more states pile on and they think this is great. We can absolutely use pretrial detention. And so the story of Salerno in a nutshell is basically kind of what all the cases in the book do, which is that there’s a notion, of course you can’t detain someone, they’re presumed innocent, just because they’ve been charged with a crime. You chip away about a little bit at it, you get people used to that, then you chip away big time, and then the Supreme Court says it’s okay. And then everyone accepts it as normal, and here we are 50 years later, and when I try to tell people, of course you shouldn’t be able to put somebody behind bars who hasn’t been found guilty yet. They’ll say, but what if they’re dangerous? And that’s kind of the argument that was persuasive to the court.

Melissa Murray I don’t even know where to start. Fat Tony and Fish seems like a good place. We’re talking a lot about detention, not necessarily in the context of criminal pre-trial detention, but detention more generally. And as you suggest, what seems to be undergirding the interest in detention and expanding our understanding of when detention ought to apply is some sense of pragmatism, maybe fear. That the individual is uniquely dangerous. And as you know, in March of this year, an individual who was protesting the situation in Gaza was detained by federal immigration enforcement officers on the Columbia campus, and has subsequently been moved to another detention facility in Louisiana, where the Fifth Circuit resides, even though his detention. Was initially challenged here in New York City. There are a lot of parallels, as you say, to just the interest in public safety more generally in the law, but how does it sort of apply in this particular moment? And what lessons can we draw from the experience with mass incarceration to the current moment where we are also seeing a similar stoking of fears about the dangers that lurk for all of us in our society right now?

Rachel Barkow Yeah, I think that when, you know, when people, when you’re scared, you want to not be scared anymore and you want the government to protect you. And if the government says, okay, here’s how I’m gonna protect you, you know I’m going to lock away the bad person or the bad people or this thing. That is politically popular. So that’s the political dynamic that has produced all this. But as I said, it wasn’t as if the framers of our constitution didn’t recognize that very dynamic, that idea that… You know, with the temptation of stopping a danger, you’re gonna wanna shortcut liberty. And that is why we have protections in there for those times when you might be tempted to kind of let your immediate fears give way to fundamental rights protections. And the problem is that in a political debate, you’re always gonna lose those political arguments with people because they’ll say whether it’s someone who is, you know detained because it looks like, you know there’s an allegation they’re linked to pro-terrorism activity. Or they’re accused of homicide. The argument will be, you gotta lock them up to keep us safe, and I think the political popularity of that is because the average person never thinks it will be them, right? You don’t think, I could be me, I can be locked up. Instead, the average thinks, I could the victim of that person, and I want the extra protection, and you know, the. The brilliance of our constitutional structure is that it is written on the theory that actually any of us could be the detainee and that we really need to protect those valuable rights. But it’s only as good as the Supreme Court that enforces it, right? The Supreme Court that guards and makes sure that its protections are adhered to. And this is the rub because the justices are people. And they are people, not only are they people, but they’re. Politically appointed people. And so they’re often appointed because they have particular points of view. So the other thing that President Nixon did was he got a lot of court appointments and he picked people who were very pro-government power, very pro law and order. And I think we have a court today that is similarly like that. And so what that means is not only are they kind of a pro law in order in there or what they claim to be, but… But they’re also government lawyers themselves. To the extent in their practice, we have a lot of people who worked for the executive branch. And so when the executive branches comes into court and says we need to do X, the person who also did that job, of course you need to X, let me give you X power. And so I think that dynamic applies in cases, whether we’re talking about criminal justice cases, we’re taking about immigration cases, we’re talk about cases involving national security, any type of context where it’s a threat to safety. The problem is that for us to have those fundamental rights and guarantees, you need a court that is willing to say, even though the government is before me right now and is saying to me, if you rule against us, the government, you’re putting lives at risk. You need a justice that says, hey, I’m just doing my job, right? The Constitution says that these rights have to be protected. And I think that is our dilemma as a society, is that will the court stand up to arguments that say. If you rule otherwise, you’re putting lives in danger.

Melissa Murray So is what the court doing with regard to mass incarceration and these cases that you have documented so well, is this about ideology? Is it about just pragmatism and this sort of fear of regarding public safety? Or is it just simply outcome determinative? And it’s not really tethered to any kind of real commitment to an interpretive method? I mean, we talk a lot about this court being conservative, originalist, but this doesn’t necessarily seem like fidelity to any particular interpretive model.

Rachel Barkow Oh, it is definitely not. It is, these are bad. They’re fun because they’re so bad in terms of their methodology. It’s like you, I almost wish I had another 100 pages to kind of even go through paragraph by paragraph, like all the things in there that are crazy and bad. So they’re not methodologically sound opinions if you’re thinking about, okay, I wanna hear the textualist argument, the originalist argument. So they are pure pragmatism, we could say. And so the question is, when the court decides Is it just? They just love the government. You know, is it that it’s results oriented and that it is a conservative argument and they want a conservative of argument? Is it that they’re just afraid like anyone else would be afraid? And that is harder to get, honestly, from reading the opinions in the papers. Like I actually don’t know that I could give you kind of an honest assessment. I do think sometimes when you look through, you feel the pragmatism in the discussion that the justices are having and the way that they are talking about things. Like they’ll. Basically, one of the opinions that I talk about in the book is on prison overcrowding. And basically, every expert says to the court, you can’t double bunk. You can’t have two people in these tiny cells. It’s gonna be a disaster for physical and mental health and safety. And the court knows that, but it also knows if it were to rule that way, that would mean that a huge chunk of the existing facilities would have been held to be unconstitutional, and so bedlam would be produced. So in the papers… You know, of the justices, they’re like, okay, so they basically feel like practically they have to rule one way, but they keep talking about how they want the tone of the opinion to be such that lower courts still feel comfortable saying when sometimes there are unconstitutional conditions. This is in some of the concurrences. And so you see some of justices saying like, don’t let what we’re actually doing in this case, you know kind of dissuade you in the future when you have the really, really, really bad cases because we still want you to do that. And so I think. It is pragmatism and that shows that it is because you kind of see it in the way that the papers and the concurrences are talking about it. I just don’t know exactly the motivation for it and I think it might be mixed. I think might be a mix of they wanna make sure that they don’t do something that hamstrings the government to the point that the government can’t keep you safe. I think some of it is. An unconscious bias in favor of executive branch arguments and deference to government regularity, which I think we are absolutely going to see the end of in these four years. I think, you know. You think so? Yeah, I think that the notion that everything that the government says is just to be taken, and that’s the other thing that’s really interesting here is the government kind of comes in and says we actually have to do this absolutely for public safety. It’s taken as gospel, like oh my gosh, okay. And as it turns out, and I’m not sure that the government, I don’t think the government did that duplicitously. I think they really believed it, but they are wrong in many of the claims. And I think that when you have a government in power that does do it duplicitiously, does sort of say one thing, but you see they’re saying other things in other contexts, I think that starts to create a credibility gap that I think more courts around the country are gonna recognize. And that could be something that would be interesting to see how it would play out in criminal cases where there’s just so much deference to whatever they say that they need. But here, just to go back to your original question, I think it is pure results-oriented pragmatism to defer to the government. And I just can’t tell you the exact motivation for why that is.

Kate Shaw We’re not sure why, but it’s pretty clear reading these cases that it is excessive deference to the executive branch, it is pragmatism, those are what we see on display in all of these opinions. And one thing I think you very persuasively show is that whatever these opinions are, however we might think about characterizing them, no one could call them originalist, right? Like absolutely not. So, and we do have a court on which today a majority of justices do pledge fealty to originalism as. The method of constitutional interpretation. And so I guess I sort of have like a two part question, which is one, I’m curious to hear you talk a little bit about the book’s relationship toward originalism as a method. So is it a, actually, we should, kind of as a normative matter, embrace originalism as the or a legitimate mode of interpretation with respect to these criminal procedure protections in the Constitution, or maybe more generally. Is it an assuming arguendo? Originalism is the kind of law of the land. How would it cash out in some of these cases? And then just to make the point more concrete, maybe I found, we can talk about any of the cases. Salerno is one possibility, but any of them, if you could just give us a little bit of, just kind of detail what an actual originalist inquiry that was done in good faith would tell us about what the Constitution permits or prohibits with respect to some of those practices.

Rachel Barkow Yeah, so I mean, I would say I think, at a minimum, I do think originalism is an important constitutional methodology. Me personally, I think that. So I clerked for Justice Scalia, I’m gonna start there, and say that I, famous liberal squish. Right, he was willing to hire law clerks with different political ideologies, not like a majority, but there were some of us. And- That’s DEI, Rachel. Yes, Democrat, and I think there is something to making sure that you stick to original protections in the Constitution. And so even if you are not an originalist in all ways, I think it should at a minimum be our floor, that you shouldn’t take away rights that were put in place at the founding and remove them. And I think one of the interesting things about criminal law is this is kind of originalism for liberals because most of the originalist argumentation that you see by justices produces conservative outcomes and these are the test cases for hypocrisy right here. I really believe it because these, I promise you the history in these cases is very solid. And so the only way that the court… Could say otherwise in these cases would have to be because they say, well, we already made the mistake, and so we’re just gonna keep going with it. So it would have be that they can’t come up with a different originalist take, but they could say stare decisis. And as you know, this court is not great on stare decisus, right? They’re willing to reconsider cases. And so I think this is a kind of a perfect time to use these or think about these cases To really kind of test the hypocrisy meter. Now, am I optimistic that if we did that, that they would come out to be super principled? I’m not optimistic, but I don’t think it’s hopeless, because I think there are some of them that would find this persuasive. So to give you the example that you asked for, I think Terry versus Ohio is a good one, because we have historians like Sarah Sayo, who’ve gone, they’ve looked, they’re like, absolutely not, you can’t. There is nothing in our founding history that would say. You could stop somebody on less than probable cause. You know, the court makes that up. And the other thing that’s interesting is there’s nothing in the opinions, as you said, Kate, where they even pretend that there’s originalist methodology. They’re just, and in Terry, so Terry versus Ohio is the case where the Supreme Court says that you can stop and frisk somebody on the basis of reasonable suspicion, as opposed to probable cause, which is what the actual constitutional language requires and what all the history would say and what every. Case had set up until the point that Terry versus Ohio was decided. And when Terry gets to the court, as I mentioned, this is 1968, the impeacher warrants signs are out there, and Terry itself, that case, was a high profile case. Newspapers were covering it. The day it was decided, it was on the front page of every major paper. So it was being watched as a big case for the court and the justices knew it. There’s tons of briefing in the case, lots of civil rights groups are telling the court that it’ll be disastrous. For African-American communities to allow stopping and frisking on this basis. There’s already bad relationships between the community and policing. They hear it all, they know it all. But they also know that if it was another policing case where they ruled against the government after MAP and Miranda in this presidential election, where they are literally on the ballot, you can tell they’re scared. So their original vote at conference is they vote to allow this. And they assume they’re just gonna say there’s probable cause. They don’t think they’re gonna create a new standard, but the problem for them is that the officer, Officer McFadden was in Cleveland, and you might ask, well, what did he stop these people for? So there’s two people, Officer Mcfadden is white, the two defendants are black, and he sees them walking on the sidewalk up and back. He sees them locking up and then he sees them meet up with a third person who is white. And that is when Officer McFadden is like, whoa. You know, now I need to stop them because under the racial mores of the time, it’s like, why would we have two black people talking to a white person? I’m suspicious. And so he stops them at that point. That is the evidence in the case to stop and frisk them for weapons. So if you’re trying to write an opinion that says he has probable cause, you’d be like, they walked up and back three times. He said they were looking at an airline ticket office, which is not usually the kind of place you case. And Officer McFadden. All his professional career had been about shoplifters and pickpockets, so he wasn’t he had no experience about people like casing a joint So he you you it wouldn’t write they couldn’t write it. They tried they tried a draft and everyone’s like, oh gosh, that’s bad We got to do something else. We got a write a different way So you see in the papers them kind of just trying to come up with something anything and they invent this suspicion standard and it’s all made up, and anyone who goes back and looks at theirs is like, wow, that’s ridiculous. But they did it because they thought that they had no choice, because the police were telling them, you have to let us stop you, but what else are we supposed to do when we see dangerous things? And I’ll just say one other thing that I thought was kind of interesting is I mentioned it to a colleague here who was a clerk on the court at the time that Terry was decided, and he’s like, you might wanna know. That when you looked out the windows of the Supreme Court at the time, you could see D.C. Burning because the riots had reached D. C. And there was literal smoke outside to kind of impress upon me. These were no ordinary times, scary, awful smoke, fires. And so I think the justices were like, okay, the police have to be able to deal with riots around the country and all the things we’re seeing, but the Constitution says that they can’t. So what if we come up with this new standard? So, you know, no originalist can justify Terry. I’ve never seen one who’s tried. I’ve, you, know, good luck. So, for the court, if someone brought Terry to the court and they had to decide it today, the only way it could be upheld would be under story decision.

Melissa Murray So Terry’s a really great place to sort of talk about the color of mass incarceration. As you know, the defendants in Terry were black and Terry is often raised as a sort of classic case that has facilitated driving while black or stop and frisk. It’s not typically associated with mass incarceration, but I think you make a really good case in the book for why Terry underwrites mass incarceration in a lot of ways. But. I wanted to ask you about a different kind of theory. James Foreman, who is also a criminal law scholar at some other university in New Haven, he argues that cases like Terry really preoccupy middle class African-Americans because they make clear that the arm of the state could get you. They’re the kinds of cases where you could easily imagine yourself driving your car or being stopped by a cop. Mass incarceration he argues hasn’t gotten as much attention from the middle class black community who might be in a better position to advocate for eliminating it because they can’t see themselves being incarcerated for a long period of time. Like they just can’t make that leap. Is there a way that your book can sort of bridge the gap between those racialized experiences to show that this actually is something that the black community. Too sweet should be concerned with and that people in general should be concerned with?

Rachel Barkow So I don’t think my book is the that bridge to be honest with you. I wish it was because I could sell more copies it’d be great. But I think the thing that is is mass incarceration itself because now we’re at the point where there are people personally affected. If it’s not you, it’s someone you know, it someone in your family, it a loved one, has been incarcerated right has been detained pretrial, has served a sentence. Those numbers now we’re getting to the point it’s you know it depends on the statistics that you look at, but. You know, one in three people have a family member who has been incarcerated, and I think that is the tipping point, because I think you’re right, I think James is right, that people need to personally experience things, I think, to really advocate for change, or they have to feel a connection to it, which is why, as much as I wish this would do it, I don’t know that it makes that personal connection for people. So you need to have a personal connection. You need to feel kind of outraged and the desire to want to change things. And I guess the book can help in the sense that it’ll at least show people that we did live differently. We didn’t always have a world that looks like the one that we have now, and we were okay. We survived, we were safe, everything was fine. These kinds of whittling away at constitutional rights is relatively recent and it’s not necessary. So what it might do is it might give comfort. To the fact that it wasn’t always this way and it was okay when it wasn’t t. But to have that energizing feeling that we need to change things, that I think is a different set of motivators that people need. And I think those motivators have to be that your empathy, I do think there’s examples in the book and I have many of them, kind of after the cases are decided, what does the world look like? And it’s really bleak. And when you read about what it does to people, so once you say you can detain somebody because they’re dangerous. You know, there’s examples that one guy, he was held, because remember, it’s not punishment. So he was on a death row, because that’s where they had space for him, for three and a half years, pre-trial. He saw people getting executed, you know, his neighbors, and the court, he sought cert, where they basically said, hey, Supreme Court, I know you said pre-trail detention was okay, but on death row? For three and half years? Cert denied, you now, and I think. I think sometimes when you read some of these facts and how insane they are, a guy steals a slice of pizza and he’s under California’s three strikes rule, you get a 25 years to life sentence for that, 25 years for stealing a slice a pizza and the court’s proportionality review for punishments allows that to stand. I do think some cases like that might get people where you say, we shouldn’t allow that, that shouldn’t happen to anybody in America. We believe in liberty here in a way that that shouldn’t happen. So I think. Maybe those examples could do it, but it would be, the best is to have a personal experience, I think. I think a personal connection where you really feel it.

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Kate Shaw So I wanna pick up on something Melissa said at the beginning of that last question. So Terry itself, it’s hard to draw a direct, kind of causal line between Terry and mass incarceration, but I think as the book really beautifully depicts, all these cases are about different aspects of this edifice that has become this monstrosity that the court has erected. And one thing I found striking and that I don’t think I realized is just how close to coming out the other way a lot of these cases were. There are a lot five, four cases. And the world looks totally different if you’re able to just pick off one of those votes. So Bordenkircher, I didn’t remember, I don’t know the case well, but the coercive plea bargaining case was 5-4. My old boss and the dean’s old boss was the fifth vote in the majority to allow coercive-plea bargaining. So I guess as to Bordenkercher maybe or any of the cases, McCleskey is also a 5-four decision. Just thinking about galvanizing actual responses to some of this outrage. But how different does the world look in general or specific terms if one or more of these cases just comes out differently?

Rachel Barkow Yeah, no, there’s a lot of what ifs in there for sure. And I don’t wanna create like a Pollyanna impression that it’d be sweetened here because we have a very punitive culture. And so some of the cases, even if they had been decided differently, I do think the punitive impulses would have a way, just the scope and the sweep wouldn’t look anything like we have now. So for example, the case that Kate mentioned is the case where the Supreme Court allowed there to be. Plea bargaining, which is a little bit of a misnomer. So the case that the court allowed it, the facts will tell you what I mean. So this guy forges a check for $88.30 to buy groceries at a grocery store. And he’s charged with a crime that has a sentence of two to 10 years. And the prosecutor’s like, OK, buddy, you plead guilty five years. And you know, Hayes, the defendant, is like, no, I think I’m gonna go to trial. And the prosecutor’s like, you go to a trial, you know if we have to go through the inconvenience of a trial then I’m going to charge you with this other law which is a habitual offender law because Hayes had some prior charges on his record and that law would trigger a mandatory life sentence. So the prosecutor says to Hayes you take the five years and if you don’t, you’re gonna get, I’m to charge with mandatory life. Now, weirdly, Hayes is like… I’m going to go to trial. Because most people, when they’re faced with that, are like, oh my gosh, I have to take the five years. Even if they’re innocent, they take the 5 years, right? That’s the dynamic we live with today. But Hayes went to trial, and he was convicted. And that was the case that was teed up before the court. So you really couldn’t have a better example of coercion, really, than that, because you have the subsequent charge. You have the prosecutor on the record talking about, I’m gonna do it because of the inconvenience of the trial. I mean, it’s. You know, that is as good a fax as you could have if you wanna say, how could you allow that court? And even there, the court was like, oh, but you know, it’s just the give and take of plea bargain, how can we not allow that to happen because the system would collapse if prosecutors couldn’t get people to plead guilty, we’d have too many trials, you know. The chief justice had given a speech a couple years before. To the ABA, it was the first time the Chief Justice gave one of these state of the judiciary speeches and it was televised on all three networks, which I think is just so funny to imagine that like, so there’s no cable TV, so all you had were the three networks and you’d be click, click, click and there would be the Chief justice telling you about the status of the Judiciary. And in that speech, he was like, oh my gosh, even if our plea rate went even from 90% to 80%, we’d have to double all of our courthouses and judges, that’d be disastrous, you know. So of course, when the court gets the case, they’re like, oh my gosh, we can’t stop this. So if that case had come out differently, you know, I think what we would see, we would still have bargains, we would have those kinds of things, but it would have to be kind of done without, not in the open, you would kind of have to, which is what it was before, by the way, when everyone thought it was unconstitutional. Because that’s another example, nobody thought that was okay. You know for most of the nation’s history. No one thought it was legal They still did do it, but they did it to a much much lower extent And so I kind of think that’s the probably the common theme in most of these cases. It’s the court Giving the go-ahead for these things makes them happen at ramped up on a way higher sweep You know, but I think we would still have a lot of incarceration But nothing like what we have today like not not even close. So so I think it would make a pretty big difference And I appreciate you mentioning the five, four cases, because those are kind of the what ifs, but the really depressing cases are the ones that are like eight, one, where you’re like, oh my gosh, none of the others. And in some of those, you see the more traditionally liberal justices, and a lot of them, I think, are making strategic choices to kind of go along and try to do some damage control within the majority. But it’s… There’s a big what if in this book and I really do think that the answer had these cases come out differently is we would have a much saner criminal justice process than the one that we have.

Melissa Murray So that’s grim. A lot of this book is grim.

Rachel Barkow That is not going to help me.

Melissa Murray But you do end the book with something of a hopeful note. And maybe we should end this conversation on a somewhat more hopeful note, you have observed that we are right now inhabiting a constitutional culture in which it seems like everything is up for grabs. And everything can be reconsidered. Everything can be reevaluated, maybe even overruled. And I think that’s grim. But you say that might actually be a silver lining. In the context of criminal justice, because it means that if you can just get a coalition together on this existing court, you might be able to reconsider some of these really flawed decisions and remake them, maybe along originalist grounds, truly originalist lines. And you would have a better outcome than what currently exists. So if you could put any of these cases back before the court to be reconsidered, Who’s your coalition? What does the case look like and which is the one that is most right to be overruled?

Rachel Barkow Ooh, that is such a good question. And it does go back to Kate’s question about originalism as a methodology, because I will also say that the other kind of main thing I hope I can do with this book is, I think that conservatives have been much better than liberals at kind of playing a long game and being very strategic in how they come before the court. And it’s not to say that this hasn’t happened on the left, because it has, but I think. Conservatives in particular have kind of recognized like they, when you think about overturning Roe, right, that’s a 50-year project that is about saying, look, if we believe this case is wrongly decided from the beginning, we’re kind of never gonna let up and we’re gonna kind of keep doing this over and over and again until we get the right mix. And here, I think, are cases that could fit that blueprint exactly, right? Wrongly decided from the begining based on the methodologies you claim to be faithful adherence to. And you don’t never write and with really bad consequences, right? You know where you could actually say like they’ve led to all these really bad outcomes and not good for public safety so I think it fits a Pragmatic blueprint for litigation that would appeal to I think you could get five So my five, you know if I had to so I do think you would need to get the the liberal Justices on the court, which is actually not a small ask because I think some of them have kind of government leans themselves. Like Justice Kagan, you know, you gotta, she’s not in criminal cases. Her instincts aren’t always to be pro-defendant, but I think some of these might persuade her. I think absolutely justices Sotomayor and Jackson will see immediately everything about these cases as being wrong, so like very great confidence there. I think Justice Gorsuch, you now, has been the most principled on the originalist side and kind of coming out with. Out case outcomes where you’re like, huh, okay, you know, and he’s done it in criminal cases. So he sees it, he’s recognized it. So, you can kind of, those four, because I do think that you could get Justice Kagan in these cases once you made out the pragmatic case that they actually turned out to be bad. So now you have cert, what comes next? We’ve got cert, and so the question is how you get that fifth. And let me start with the, oh my gosh, never, haha, Justice Alito, okay. We’re going to put him over here as impossible, I think impossible, because he’s not a faithful adherent to any methodology, and he doesn’t even claim to be, you know, he really doesn’t. So it would have to be one of the others, and the question is kind of, you now, what would be the argument? So the argument would be for a Roberts, a Barrett, a Kavanaugh, would be, this is the perfect opportunity for you to show the world that you are not results-oriented, that you in fact are faithful to a methodology. And the way that you show that, you know, because one of the things that Justice Scalia, you know and he used to go on the speaking circuit and he would talk about originalism. The case he loved talking about was the flag burning case because he would say, you now, when you’re an originalist, sometimes you have to decide cases that you don’t like. You know, and that’s how you know your principle because basically every judge should be able to point to a case that I hated that outcome, but I had to do it because of my methodology. And he would say, the flag burning case, I’d go home and Mrs. Scalia would scowl at me, like, how could you, it’s the flag? You know, and, but he would. Sure he wasn’t talking about Mrs. Alito? Definitely pre-elito flag. But it was a good case, right? Because people would say, you know, actually, that’s right. I can remember, Justice Scalia, and he had other cases like that that were very good for him to say, I’m a principled originalist. And they don’t have that. This court really doesn’t have that on their resume right now. And so I think the argument for it is a way to say yeah, OK, well, when we overruled Roe, wasn’t just result-oriented because we did the same thing with Terry versus Ohio. It was also a 50-year-old precedent that was wrong from the day it was decided, and they never considered these originalists. So that would be the pitch. And on the merits, I’m telling you, it’s a slam dunk on just the merits of the legal argument. So it’s it’s question of professionally, how do you think about it? And stare decisis is that malleable kind of standard. That people pick and choose which cases they uphold and which ones they don’t. And so it would just be difficult I think to make an argument that these have to stand because of some kind of path dependency. The hardest one I think is plea bargaining on that score because it is so embedded, it’s so part of the system. But stop and frisk, for example, in New York, the argument that the NYPD made when it was struck down in a district court here for racial disparities, the NYP said, We can’t survive without stop and frisk, but the court struck it down. We went from almost 700,000 stops per year at the peak to under 15,000. Crime didn’t go up. Everything was fine. The sky didn’t fall. And so I think a case like Terry shows that the things don’t have to fall apart. You could do it. So I think that is a strong one for it. The harder one would be like. Prison overcrowding, you already have the physical structures, you have the double bunking. Pragmatically, it gets a little harder. So I think that, but I think pre-trial detention and so Salerno and Terry are probably the two strongest contenders, and also the standard for reviewing long sentences, which we didn’t talk about. But under the Eighth Amendment, that’s another one that I don’t think you have like an embedded structure that would be very difficult to undo. I think would be another one that is easily pragmatically argue that you could do as a matter of stare decisis.

Kate Shaw Rachel Barkow, wonderful to talk to you about this book, Justice Abandoned, How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. Pick it up. Can’t recommend it highly enough. And thank you so much for talking to us today.

Rachel Barkow Thank you guys.

Melissa Murray I just want to say thank you to my fantastic NYU colleague, Rachel Barkow, for joining us for that conversation. The book, Justice Abandoned, is absolutely fantastic. I learned so much from reading it. It’s just like this wonderful narrative about all of these cases that are just real chestnuts in the criminal procedure canon. And she really brings them to life and also talks about how the court and its fear of public safety and its concerns about public safety. How those concerns animate so much of what the court is doing. And I think that lesson obviously translates into some of the things that we’re seeing today, even outside of the criminal procedure context. So many thanks to Rachel for joining us and for this fantastic summer read. Now, let’s wrap up this episode with our recommendations of things we’ve read or otherwise ingested and enjoyed this week. So Kate, I will let you start.

Kate Shaw It sounds delightfully illicit. Um, mine?

Melissa Murray What have you adjusted?

Kate Shaw Really just words, Melissa. So first, Leah Litman and Dan Deacon have a new draft article up on SSRN. It’s called Legalistic Noncompliance. They also spun off a really good, short, pithy Atlantic piece based on the article maybe a month or so ago. But the full piece is an excellent overview of just the kind of campaign of lawlessness we’ve seen in the last six months and the real failure to meaningfully comply with court orders while you know, sort of adopting this patina of compliance, and they break down, they both name and describe this phenomenon in like a crucial way. So, highly recommend that article. I also thought that Jeff Toobin’s piece about Beauvais, Trump’s plans to put Emile Beauvais on the Supreme Court in the Times sometime last week, early last week I think it was, was kind of a terrifying peek into a future, if Beauvais is on the third we were just talking about, like, you know, maybe he… As like a real henchman model of a Supreme Court justice, like would really break even the very disturbing recent mold of Trump appointments to the Supreme Court. So if you thought things were bad, don’t worry, they could get way, way worse. So I kind of recommend that read. And then finally, Ami of the pod, Steve Vladeck had a great bonus episode of his one first newsletter this week called the case for not writing. And that just, you know, obviously as we were just talking about the Department of Education order. The court is not explaining itself in crucial orders. And he sort of takes on and, of course, dismantles all of these arguments that people offer in defense of the justice’s practice of not writing in these cases. So that, I think, is a crucial read.

Melissa Murray OK, I’m going to start with some things that I read on my way to Perry. The first was a delightful novel by Alison Espach. It’s called Wedding People. I think that’s how you pronounce her name, Alison Espach. It’s absolutely fantastic. Really loved it. Super funny, really wry, just a good, good beach read. Another thing that I read that I actually just put in my queue, I didn’t have time to read it when it was first published in The New York Times has published the week of Independence Day. But I came back to it because it’s just lengthy, and I wanted to spend some time with it. But it’s by Carlos Lozada, who’s one of The Times’ regular opinion contributors. And the piece is called What Reading 5,000 Pages About a Single Family Taught Me About America. And it’s basically Carlos Loza talking about reading the entire John Jake’s series, The Americans, which begins with The Bastard. I read these books when I was in eighth grade over the course of one summer. So I thought this was just. So much fun to go back and remember, but also to sort of read them or think about them in a different light about the sort of themes of what it means to be an American, the idea of the American dream starting over, excluding people. I mean, it was just both a critical and a kind of really nice take on the country on the 4th of July week, although I read it much later. But I absolutely thought this was a fantastic piece. And if you haven’t read John Jake’s The Americans or any of John Jake’s books, I think they’re really fantastic and a great way to learn a lot of history in a fun way. But the real thing I want to recommend is my trip to Paris. I want thank my bestie, Rose Villasor, who decided that we’re going to take a girls trip this year. And we headed off to Paris we were supposed to go back in May. But apparently, when you put road rules alums in charge of the Department of Transportation, some things go wrong at Newark Airport. So we had to postpone our trip And somehow, we managed to postpone it to the week of Bastille Day, which was so much fun. So we literally jumped off the plane on Saturday morning, headed to an Emily in Paris tour that began around the Pantheon. We had a great Emma leader, Sophie Hassan, who is absolutely fantastic. If you’re in Paris and you want to do something fun, you can go on this Emily in Paris tour. You’ll learn all about Emily in paris, the show, but also a lot of really cool French history about the sights in Paris. It’s just a great way. To get your energy up, beat the jet lag, and keep it moving. We also had so much fun on this trip, going to restaurants, seeing museums, and seeing all of the sites. And I want to call out someone who I met in line at the Tour Eiffel Eiffle Tower, for those of you who haven’t used Babel yet. And that is Professor W. Monte Whitney, who is a professor at Morehouse College. We met in the line at the Eiffel Tower. We spent all of this time talking about how much we love Morehouse College and all of the great colleges in the Atlanta University Center. And he was just absolutely delightful. I don’t think he listens to the pod. I do think he watches MSNBC. But he was absolutely lovely. And it was great to meet a fellow American in the Line. So thank you. Professor Whitney for making that a memorable visit. And thank you, Paris, it was the most fun in the City of Lights.

Kate Shaw Alright, well that’s it for this week, we will be back in your ear holes next week.

Melissa Murray See you soon, au revoir! Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. It’s produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, Jordan Thomas is our intern. We get audio support from Kyle Seglin and Charlotte Landes, and music is by Eddie Cooper. We get production support from Katie Long and Adrian Hill, and Matt DeGroot is our head of production. We are thankful for our digital team, Ben Heathcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes, and you can find us at youtube.com forward slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you really want to help other people find the show, please rate and review us. It really helps.

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