Guest Post: Rachel Barkow, "The Allure of Cutting Constitutional Corners"
Lessons for today from Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration
[Editor’s Note: Rachel Barkow appeared as a guest on the latest episode of the Divided Argument podcast to discuss her new book, Justice Abandoned. Check it out if you’d like to hear more discussion of her book!]
When I was writing my book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration, I didn’t appreciate that it would be released at the start of a second Trump Administration. That is not ideal timing for releasing any book just because Trump seems to capture so much attention. Within his first weeks in office, he was already shattering settled norms, from prosecutorial independence to ethics rules, from global trade and tariff policy to the structure and size of the federal government and DOGE’s role within it. Although I thought the six cases I focus on in the book offered valuable lessons about the Supreme Court’s failure to stand up for liberty when faced with government claims of necessity for public safety, it just didn’t seem like the ideal time to get that message out. But academia is a long game, so I was content to wait for a moment when my research might seem more relevant.
It turned out the wait was a short one. When the Trump Administration kicked its immigration enforcement push into high gear, it felt, as Yogi Berra would say, like déjà vu all over again. I started hearing the familiar arguments outlined in my book that were used to pave the way for mass incarceration, now being repurposed for the Trump Administration’s immigration agenda.
The campaign to unsettle the assumptions around birthright citizenship, for example, has strong parallels to Nixon’s ultimately successful effort to get pretrial detention on the basis of predicted dangerousness accepted in spite of a 200-year history where no one thought that was acceptable, a story I tell in the chapter on Salerno. It may be difficult for people to grasp now, with five decades of pretrial detention for dangerousness viewed as normal, but for most of the Nation’s history, no one thought you could detain someone after an arrest just by claiming they were dangerous. Pretrial detention was done only to make sure the trial itself could occur, so valid reasons were things like flight risk and the protection of witnesses. This was a deep and settled history grounded in the presumption of innocence and at the core of the Eighth Amendment’s Excessive Bail Clause. The Framers would be shocked to learn we now detain people as a matter of course after an arrest.
Nixon led the way in creating a new normal. After running a law-and-order campaign and looking for ways to prove he was tackling crime, he decided pretrial detention needed to be expanded. His Attorney General, John Mitchell, wrote a law review article trying to make the case that this was consistent with history and the presumption of innocence. (Larry Tribe responded with his own article, decimating Mitchell’s claims.) This effort to try to create legal scholarship to support a theory that previously had no defenders calls to mind the birthright citizenship debate going on today (though, thankfully, Pam Bondi has not yet weighed in with a law review article).
Nixon Administration lawyer William Rehnquist helped draft a DC law that would allow pretrial preventive detention for dangerousness under narrow circumstances, and that metastasized into more sweeping laws getting passed around the country, including a federal law in 1984 that created presumptions of detention. Rehnquist wrote the opinion for the Supreme Court upholding that federal law and dismissing the idea it was in conflict with the presumption of innocence. And far from being a narrow exception – something Nixon, Mitchell, Rehnquist, and Members of Congress supporting the 1984 bail law claimed it would be – detention is now a default. Roughly 75% of all federal defendants are detained pretrial. This is the outcome of a deliberate campaign to change settled understandings that involved legal scholarship, legislative changes, and judicial appointments of people sympathetic to the idea. It is not hard to see how something similar could play out with birthright citizenship over time.
One can imagine a similar path for the Trump Administration’s war on due process. It claims that due process requires too many resources and risks dangerous criminals roaming the streets, again echoing arguments I detail in the book. Resource constraints were front and center in the strategy to get the Court to allow coercive plea bargaining tactics and accept prison overcrowding. In these contexts, as well as the push to get the Court to bless police stops and searches on the basis of less than probable cause, the government made claims that requiring more elaborate process or higher standards would prove insurmountable given limited government resources. Then, as now, the government strategy is to argue that the system cannot handle the number of cases without relaxing procedural hurdles and that substantive threshold requirements also need to give way because otherwise law enforcement will be hampered to the point of ineffectiveness. If the Court doesn’t see things the same way, the government argues that dangerous criminals will roam the streets.
Trump made this explicit in his Truth Social post, arguing that the Supreme Court ruled that “the worst murderers, drug dealers, gang members, and even those who are mentally insane, who came into our Country illegally, are not allowed to be forced out without going through a long, protracted, and expensive Legal Process, one that will take, possibly, many years for each person, and one that will allow these people to commit many crimes before they even see the inside of a Courthouse.” This is the same threat behind Stephen Miller’s trial balloon that the Administration is “actively looking” at the possibility of suspending habeas corpus because court rulings are making immigration enforcement too difficult.
There are even parallels with today’s politicians applauding inhumane detention facilities and the indefinite detention of people with no criminal records and the similar push that resulted in the Court’s Eighth Amendment jurisprudence likewise showing little regard for proportionality.
Suddenly, I am seeing history repeat itself all around me in terms of Trump Administration arguments. The chapters of my book have been coming to life in new guises. The question is how the Supreme Court will respond to these new versions of familiar arguments. Will it once again cave to government claims that cutting constitutional corners is necessary for public safety, as it did in the cases I outline in the book, or will it stand firm and protect sacred constitutional rights?
I remain worried that we may be headed down the same path as the one I write about in Justice Abandoned, particularly if these efforts persist over years. For now, though, there are some signs from the Court that it might take a different course. First, as I highlight in the book, one of the reasons the six cases I discuss came out the way they did is because the Court was not as devout in its commitment to originalism and textualism when they were decided. This is not to say the Court is always consistent on that score, but the current Court does have several justices who are committed originalists and textualists, and I argue how the six cases I discuss are in tension with the Constitution’s original meaning as well as the line of Court precedent that existed when they were decided. I argue in Justice Abandoned that the cases should be reconsidered as a result, and because this Court is not exactly a stickler for stare decisis, it seems like an argument that has a chance.
The Administration’s immigration arguments are even stronger ones to reject because there is no stare decisis obstacle in the way. Birthright citizenship would come to the Court without the burden of needing to overrule a prior case. On the contrary, upholding birthright citizenship is consistent with cases already decided, and seems like a no brainer for any originalist or textualist. The allegedly pragmatic arguments put forth by the Administration don’t seem to stand a chance on the current Court.
The second reason I am more optimistic that the Court may not fall for government claims of public safety necessity this time is that the Court is now faced with an Administration that does not operate in good faith and seems to have lost the Court’s (or at least seven Justices’) presumption of regularity that past administrations had when they raised similar claims.
It’s not so much that the Court has learned lessons from the cases in my book – though I still hold out hope that will happen. It is that this Administration is making it clear why the Framers thought we needed constitutional protections in the first place. The Court is finally seeing up close what government abuse looks, and for some of these justices, it seems like it might be the first time they are realizing that the government is capable of some truly awful abuses.
That leads me to the third reason things might be different now. One of the reasons I think the cases I highlight in my book came out the way they did is that the Court did not have enough justices with relevant experience representing individuals to understand exactly how abusive government power can be and how it affects individuals. This is a Court that has been dominated by people who worked for the government, not fighting against it. They have thus tended to see the government as operating in good faith, just as they saw themselves doing so when they held their government positions.
That is one reason why I and others have advocated for greater professional diversity on the bench. Having people with public defense and civil rights experience is valuable precisely because those experiences give people a needed perspective on government failings and the danger of government abuse.
While the current Court lacks that professional experience, the current justices are nevertheless getting that same perspective because the Trump Administrative is making no effort to hide its abusive behaviors. After the Administration mistakenly deported Kilmar Abrego Garcia to El Salvador, the Supreme Court ordered the Administration to facilitate his return. The Administration has defied this order and has instead openly mocked the idea it will ever comply. This recalcitrance helps explain why the Court has enjoined further deportations.
So maybe past won’t be prologue when it comes to the Administration’s efforts to push the constitutional envelope to allow mass deportations. And maybe the Court’s experience today will help it to see the mistakes it made in the past.
One thing the book emphasizes is the truth of Benjamin Franklin’s adage that “they who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” America has gotten what it deserves when it comes to the six cases I discuss. The Court sold out essential liberty protections, and we are no safer as a result. A similar fool’s bargain seems in the offing right now with the Administration’s claims about immigration policy. Let’s hope we can learn some valuable lessons from the past.
