Divided Argument Gorsuch Genie
4 snips
May 22, 2025 
In this engaging discussion, NYU law professor Rachel Barkow explores her book, 'Justice Abandoned'. She makes a compelling case about how key Supreme Court rulings have strayed from the Constitution, allowing mass incarceration to flourish. Listeners will delve into the complexities of originalism, the Eighth Amendment, and the impact of historical judicial attitudes. Barkow also shares her experiences as a law clerk for Justice Scalia, advocating for a reevaluation of the justice system. A thought-provoking genie tradeoff adds an intriguing twist!
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Court Enabled Mass Incarceration
- The Supreme Court allowed criminal justice practices contrary to historical constitutional protections, fueling mass incarceration.
- Key rulings include pretrial detention, plea bargaining coercion, minimal sentencing scrutiny, poor prison conditions, policing leniency, and dismissal of racial bias claims.
Originalism Could Limit Damage
- Different justices with strong originalist commitments might have limited court rulings that caused mass incarceration.
- Pragmatism often led courts to prioritize public safety over constitutional fidelity, causing broader harm than intended.
Rehnquist’s Role in Detention Laws
- Chief Justice Rehnquist knew detaining people pretrial would expand but supported it.
- He even drafted early preventive detention laws, showing awareness and acceptance of their consequences.
