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.

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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.

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This term, the Supreme Court addressed some of the biggest challenges in its history, with a president determined to break through the constitutional limits of executive power and the Court’s own public approval near all-time lows. Did the justices stand up for the Constitution on the biggest issue facing the country, the extraordinary executive power grab?

Against this backdrop, the justices handed down rulings in key cases affecting millions of people’s lives, including access to health care, education, and political representation and the power of federal courts to issue nationwide injunctions.

Whether you follow the Court closely or are looking to understand its role in our system of checks and balances, this discussion will provide essential context for how the Court is working today.

Speakers:

• Joyce Vance, Distinguished Professor of the Practice of Law, University of Alabama School of Law; Senior Fellow, Brennan Center for Justice

• Cecillia Wang, National Legal Director, ACLU

• Kim Wehle, Professor of Law, University of Baltimore School of Law

• Moderator: Alicia Bannon, Director, Brennan Center Judiciary Program and Kohlberg Center on the U.S. Supreme Court

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Recorded on July 09, 2025.

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On the first day of his second term, President Trump issued an executive order purporting to strip U.S. citizenship from the children of undocumented immigrants. The order directly conflicts with the plain language of the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” And it defies more than a century of case law.

The executive order was met with a wave of court rulings blocking its enforcement, and the Supreme Court has already heard arguments on the issue. What historical currents led to the ratification of the amendment’s Citizenship Clause? How did courts interpret its guarantees in the decades following? And how do today’s attacks on birthright citizenship relate to historical attempts to deny citizenship to people born and living in the United States?

Speakers:

• Kate Masur, Professor of History, Northwestern University
• Martha Jones, Professor of History, Johns Hopkins University
• Erika Lee, Bae Family Professor of History, Radcliffe Alumnae Professor, Harvard University
• Thomas Wolf, Director of Democracy Initiatives, Founder of Historians Council on the Constitution, Brennan Center
• Moderator: Kareem Crayton, Vice President for Washington, DC, Brennan Center

Recorded on June 11, 2025.

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