The Briefing with Michael Waldman22 Heinä 2025

The Constitutional Obligation to Justice

The end of the 20th century saw the rise of mass incarceration as well as originalism, the idea that judges must interpret the Constitution according to its supposed original intent. In a new book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration, legal scholar Rachel Barkow highlights the conflict between the two.

Using six Supreme Court cases, she shows how mass incarceration is at odds with the Constitution’s text and original meaning. In this event, Barkow and former U.S. Attorney Preet Bharara, who spent eight years overseeing federal prosecutions in Manhattan, discuss what the cases in Justice Abandoned teach us about today’s Supreme Court, including the long-term ramifications of sacrificing the liberty guaranteed by the Constitution in the name of public safety.

If you enjoy this program, please give us a boost by liking, subscribing, and sharing with your friends. If you’re listening on Apple Podcasts, please give it a 5-star rating.

Speakers:

Rachel Barkow, Charles Seligson Professor of Law, Faculty Director of Zimroth Center on the Administration of Criminal Law, NYU School of Law
Preet Bharara, Former U.S. Attorney, Southern District of New York; Partner, WilmerHale
Moderator: Hernandez Stroud, Senior Fellow, Brennan Center Justice Program

Recorded on June 05, 2025.

In Justice Abandoned, Rachel Barkow exposes how the Supreme Court’s embrace of originalism helped erode constitutional protections and fuel mass incarceration — a must-read for anyone who cares about our Constitution and criminal justice reform. You can find the book here.

Keep up with the Brennan Center’s work by subscribing to our weekly newsletter, The Briefing: https://go.brennancenter.org/briefing

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