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shopify.com/Vox Business. From

1:24

Cafe in the Vox Media Podcast

1:26

Network, this is stay tuned in

1:28

brief. I'm Preet Barara. Did the

1:31

Supreme Court lay the legal foundation

1:33

for mass incarceration? Rachel Barco explores

1:35

this question in her new book,

1:38

Justice Abandoned, how the Supreme Court

1:40

ignored the Constitution and enabled mass

1:42

incarceration. Rachel is a criminal law

1:45

professor at NYU Law School and

1:47

a cafe contributor. Previously, she was

1:50

a member of the US Sentencing

1:52

Commission. and also the Manhattan DA's

1:54

Conviction Integrity Policy Advisory Panel.

1:56

She joins me today to

1:59

discuss her book. the Supreme

2:01

Court, and how the Trump

2:03

administration could transform our justice

2:05

system. Rachel, my friend, welcome

2:07

back to the show. Oh, thank you. I

2:10

wanted to just say a point of privilege

2:12

right off the top that it is a

2:14

great regret of mine that even though we

2:16

both teach at NYU Law School, you as a

2:18

real professor, me as kind of

2:20

a pseudo professor, that you can't be

2:22

a guest in my class ever, because

2:25

you teach your class at the same time

2:27

as mine. Well. this semester. So it's a

2:29

big look. So instead, I may require all

2:31

my students to listen to this

2:33

conversation. So congratulations on the book.

2:36

Thank you. So what's sort of interesting is

2:38

on this issue of mass incarceration,

2:40

and I want to talk about the scope of

2:43

it in the United States and how

2:45

it differs from other countries. Generally speaking,

2:47

people blame the executive branch,

2:49

prosecutors in the executive branch and

2:52

also at the state and local

2:54

level, for in the minds of some people.

2:56

not all people, and you and I don't

2:58

agree on everything, over prosecuting,

3:01

prosecuting certain kinds of crimes

3:03

more than other kinds of crimes,

3:05

also blame the legislative branch

3:07

for enacting laws that are then

3:10

enforced by the prosecutors, many with

3:12

mandatory minimum sentences. And

3:15

your book is about the third branch

3:17

of government, the court, and in

3:19

particular the Supreme Court. How in

3:21

your mind, how much responsibility does

3:23

the court bear for the mass

3:26

incarceration issue? I mean, it's a chunk. I

3:28

would say that I don't think it's the

3:30

court is not the primary driver

3:32

of it, but I think it's

3:34

important to recognize that we wouldn't

3:36

have the scope of incarceration we

3:38

have today if the court had

3:40

done its job. You know, the

3:42

movers are definitely the political branches,

3:44

as you said. You know, it's

3:46

the public wants to see action

3:48

on crime. Legislatures want to show

3:50

that they care about the issue

3:52

and they pass ever tougher laws.

3:54

Constitution knew that there would be

3:56

a dynamic like that and so

3:58

there's actually a a lot of checks

4:01

in the Constitution. And what I tried

4:03

to do in the book is highlight that

4:05

there's a fair number of areas where the

4:07

Supreme Court just ignored those and let the

4:09

government do what it wanted. And that actually

4:12

allowed for the acceleration of mass incarceration. So,

4:14

you know, definitely not the only cause could

4:16

happen anyway, even if the court had done

4:18

its job, but it would have slowed things

4:21

down dramatically. And honestly, I don't think we

4:23

would reach the scope we're at today if

4:25

the court had done what was supposed to.

4:28

Describe what that scope is for people?

4:30

So America has the distinct honor

4:32

of being the world's largest incarcerator. So,

4:34

you know, we incarcerate a bigger chunk

4:37

of our population than any other country

4:39

in the world. So, you know, we

4:41

have about 5% of the world's population

4:43

and we have almost a quarter of

4:46

the people who are incarcerated are in

4:48

the United States. And it's also historically...

4:50

We're kind of went off course because

4:52

it didn't used to be like that.

4:55

We used to look like other Western

4:57

democracies for most of our history. And

4:59

it wasn't until the 1970s that

5:01

that rise to those numbers started

5:04

to begin and get us to

5:06

this point. So it's relatively recent.

5:08

It's about 50-year-old. kind of dynamic,

5:10

and it's definitely different from certainly

5:13

any other Western democracy, any other

5:15

country that looks like us in

5:17

terms of governance, and really distinct

5:19

from other places in the world,

5:21

just full stop. We just rely

5:24

on incarceration and criminalization

5:26

a ton. What's the state of the politics

5:28

on the issue of mass incarceration? Is

5:31

it really a progressive issue?

5:33

Who are the constituencies, if

5:35

any? Yeah, so you know, we have the

5:37

right number of people in prison.

5:39

Yeah, so you know, for a

5:41

while the constituencies for criminalization and

5:43

punishment were both Democrats and Republicans and

5:45

they basically just fought each other to

5:48

see who could look tougher, be tougher.

5:50

And that was the dynamic really until

5:52

starting, and I would say around 2008

5:54

when we had our fiscal crisis, and

5:57

there were state governors and legislators that

5:59

really Wow, this is really expensive. You

6:01

know, if you're going to incarcerate everybody,

6:04

you've got to pay for that. And

6:06

they were running into financial constraints. And

6:08

that was sort of the first shift

6:11

to like, maybe we should put some,

6:13

you know, like a little, like hold

6:15

back a little bit. And then the

6:18

other big shift, I would say, came

6:20

with the George Floyd protest summer of,

6:22

you know, people really focusing in on

6:24

the racial injustice and, you know, kind

6:26

of a big. progressive swing towards kind

6:28

of controlling it. And you know, and

6:30

in between there, there were other things

6:33

that I think happened that that helped

6:35

push back a little bit. I think

6:37

Michelle Alexander's book, The New Jim Crow,

6:39

was actually a really important kind of

6:41

step along the way to questioning things

6:43

because I think she was really the

6:45

first prominent person to call out the

6:47

racial justice issues associated with it. And

6:50

her doing that really led to a lot

6:52

of racial justice groups saying, gosh, she's right.

6:54

you know, this is the racial justice issue

6:56

of our time and maybe we should think

6:58

about it. So there was a little bit

7:00

of a pullback, but I got to say

7:02

in 2025 where we are now, you know,

7:04

I think we've regressed again and we're back

7:06

a little bit more to the, you know,

7:08

I don't know that people care as much

7:10

about it as they did in that kind

7:13

of peak George Floyd summer, but I still

7:15

think there's some interest and I will say,

7:17

I think it is on the left in

7:19

the left and the left and the right

7:21

for very different and the right for very

7:23

different reasons for very different reasons for Trump

7:25

talk about the deep state and you hear,

7:27

you know, cash Patel talking about, you know,

7:29

agents going too far. I mean, if you

7:31

didn't know what they were talking about, you

7:33

know, you could think that was someone on

7:35

the left saying, yeah, gosh, prosecutors are too

7:37

aggressive. You know, they come down too hard.

7:39

You know, things are too harsh. So, so

7:41

there, there is some instinct, I think, on

7:44

even the right to say, wow, is this

7:46

what we do. And I'm not sure they

7:48

have a global concern with this. There is

7:50

not a lot of coherence. I definitely

7:52

want to get to that. But as

7:54

you mentioned, Trump administration, and

7:56

we talk about cost, what comes to

7:58

mind is the doge, which to do lots

8:01

of things, including shut down

8:03

USAID and all sorts of other

8:05

stuff, one of the big expenses

8:07

of the federal government

8:09

is running these prisons. So

8:11

maybe I've missed it, but have

8:13

we heard Elon Musk or the Doge

8:16

talk about cutting costs and

8:18

cutting personnel in our

8:20

prison system? I have not seen

8:22

that. You know, that is a. tough

8:24

one to try to. It's not like

8:26

they're profligate in terms of, you know,

8:28

excess. And our federal prisons are actually

8:30

better than our state prisons are in

8:32

terms of conditions. But the biggest cost

8:34

with running a prison is labor. And it's

8:36

not like they really have excess labor

8:38

to deal with because they really run

8:40

them at the bare minimum as it

8:43

is. You know, you have people who,

8:45

everyone who performs a function in the

8:47

Bureau of Prisons, who works in a

8:49

correctional facility, also has to be all

8:51

hands on deck if there was ever

8:53

a security violation, you know, if they

8:55

set the alarm off within the facility.

8:57

So they do double duty and as

8:59

it is the ratio between incarcerated person

9:01

to staff is, you know, it's a

9:04

pretty big ratio right now. surprise me

9:06

if he gets there because it doesn't

9:08

look like health, safety, and rationality is

9:10

necessarily the driver. But it'd be very

9:12

hard to do that and not risk

9:15

some serious health and safety concerns. But

9:17

I should say. Well, the way to

9:19

do it is to let people out

9:21

of prison. Yes, if they were willing to

9:23

do that, that could do it. Well, and some

9:26

people. The white collar corruption people, they

9:28

get to get out. There are

9:30

just not enough of them to

9:32

make a dent in the federal

9:34

prison population. You would absolutely have

9:36

to think about people who are

9:38

there for drugs, firearms, immigration. And

9:40

given everything they have said about

9:42

their enforcement priorities, I don't think

9:44

they want to release, at least

9:46

the drug and immigration folks. Well,

9:48

they could go straight from prison

9:50

to their home countries where they haven't

9:53

been in a very long time,

9:55

I suppose. But that's all. speculation. So

9:57

you point to six particular three

9:59

organized book, which I love very

10:01

much. Six Supreme Court decisions spanning

10:04

about the late 60s to 1991. We

10:06

can't get to each of these, but among

10:08

the things that you describe as

10:11

a contributing to mass

10:13

incarceration, our decisions relating

10:15

to pretrial detention, plea

10:17

bargaining, harsh sentences, prison

10:19

conditions, stop and frisk, and

10:22

racial bias. Let's talk about a

10:24

couple of them. So pretrial

10:26

detention. This is not a household name

10:28

kind of case, like some other cases

10:31

are. United States versus Salerno,

10:33

maybe even some people who are a

10:35

bit at a bit of some distance from

10:38

law school may not know it. How is that

10:40

decision? How does that bear on the

10:42

issue we're talking about? Yeah, sure. So, you

10:44

know, pretrial sentence, I don't have

10:46

to tell you prete, but I'll tell

10:49

your listeners. So if you have been

10:51

just charged with a crime and not

10:53

convicted, you would think your... presumed innocent

10:56

until you are convicted and therefore you

10:58

don't get your punishment, you don't get

11:00

thrown in a prison until after your

11:03

conviction. And basically that was the way

11:05

things worked in America. That's what everybody

11:07

understood to be what we were

11:09

supposed to be doing for most of

11:12

our country's history until the Nixon administration.

11:14

And Richard Nixon decided that he wanted the

11:16

ability to detain people before they'd been convicted

11:18

if they were deemed to be dangerous. And

11:21

you know before that you could detain people

11:23

because they were a flight risk. We've always

11:25

had that. You know that that's the whole

11:27

point of bail is just making sure someone

11:29

appears before a judge so they have their

11:31

trial. They don't intimidate witnesses. But you couldn't

11:34

just like lock somebody up because you

11:36

thought, oh my gosh, you know, I

11:38

think they committed a crime. You know,

11:40

if you wanted to lock someone up

11:42

because they were dangerous, you had to

11:44

go through civil commitment proceedings. It's actually

11:47

much more difficult. So Richard Nixon decided,

11:49

I don't like that. And he set

11:51

about on a course to really to

11:53

change the law. It's super fascinating. So

11:55

he asked lawyers in his administration, including

11:58

William Rehnist, who later becomes the decision.

12:00

proving this. He has him write a

12:02

law for the District of Columbia that would

12:04

allow you to detain people who were arrested

12:06

if the government could show, you know, like

12:09

a substantial probability that they committed the crime

12:11

and that they were dangerous. So it was

12:13

a kind of narrow inroads into this idea.

12:15

And he at the same time, President Nixon,

12:18

he had his attorney general, John Mitchell,

12:20

write a law review article, which is

12:22

a kind of funny strategy in terms

12:24

of the political climate. I just thought

12:26

that was interesting. Yeah, John Mitchell writes

12:28

a law review article saying, oh yeah,

12:30

I know you didn't think we could

12:32

put people in jail who hadn't been

12:34

convicted of anything, but as it turns

12:36

out, sure you can. Like, let me

12:38

give you my new theory of the

12:40

Constitution. So he writes this law

12:43

review article. There's a response by

12:45

Larry Tribe that just decimates every

12:47

argument. I mean, it's really quite

12:49

good. But unfortunately, in the DC

12:51

courts, that... D.C. law ends up

12:54

getting upheld. And I think it's

12:56

because, you know, we are in

12:58

late 1960s, early 1970s, America is

13:00

going through massive increases in homicide

13:02

rates and crime, and there's all

13:04

kinds of unrest. People are protesting.

13:06

The protest turned to riots in

13:08

many cases. So, you know, you're

13:10

looking at a really a time

13:12

of, it's tumultuous, and people are

13:14

very scared. So the D.C. court

13:16

upholds this, and then the federal

13:18

government writes a bail law that's

13:20

way more sweet. the federal bail

13:22

reform act that basically says, oh yeah, you

13:25

can detain anybody who you think is dangerous.

13:27

And in fact, let's just presume that to

13:29

be the case for everyone who has been

13:31

arrested for a drug offense that has a

13:34

certain statutory maximum, which turns out to be

13:36

almost everybody who commits, who's arrested for a

13:38

federal drug offense. That law gets to the

13:41

Supreme Court. It was passed in 1984, gets

13:43

to the Supreme Court in this case

13:45

called Salerno, and some people might know

13:47

who Salerno is, because he was the

13:49

head of the Genovese crime family. Anthony

13:51

Salerno, fat Tony, as he was known.

13:53

So the government thinks, this is the

13:55

perfect case, like if you wanted to

13:57

think of your test case to get

13:59

the... court to say, of course you

14:01

got to be able to detain dangerous

14:04

people. It's hard to beat two leaders

14:06

of one of the major crime families

14:08

because the idea would be if you

14:11

let them out, you know, they're going

14:13

to keep running their crime family. Now,

14:15

interestingly, one more little piece of trivia

14:17

on that case that I thought was

14:20

interesting when I was looking into it.

14:22

It turns out Fat Tony at that

14:24

point was no longer being detained pretrial.

14:26

He'd actually already been convicted of other

14:29

things. his lieutenant who was also in

14:31

the case, he was also out. He

14:33

was no longer in pretrial detention because

14:35

the government had signed him up as

14:37

a cooperator. So he was out and

14:40

about. So the case should have never

14:42

even been heard by the court. But

14:44

I think the court at that point

14:46

was was eager to give the government

14:48

the win. Chief Justice Rehnquist was eager

14:50

to write the opinion, to say basically

14:53

the grandchild of the law he wrote

14:55

himself was fine. And ever since that

14:57

case was decided, we've just seen a

14:59

sea change in the number of

15:01

people who have been put

15:03

in jails, you know, who

15:05

are supposed to be presumed

15:07

innocent, that have been put

15:09

in jails, often for really

15:11

long periods of time, years

15:13

in some cases. It's an

15:16

average of a year these days.

15:18

And it's all because they're arrested

15:20

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15:22

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18:34

So, you know, I as a prosecutor under

18:36

the federal system that I

18:38

inherited when I became a

18:40

prosecutor, sought and oversaw the

18:42

seeking of lots and lots of

18:45

pretrial detention, I always thought

18:47

that was appropriate so we don't

18:49

maybe fully agree. But to

18:51

understand the scope of what you're

18:53

saying is that the dangerousness should

18:56

never be a basis for pretrial

18:58

detention. or it should be exceedingly,

19:00

exceedingly hard, or it should be moderately hard

19:02

or harder than it is, because a lot

19:04

of people will say, if you've been accused

19:07

of committing certain crimes, it takes a while

19:09

to get to trial, but there's overwhelming proof

19:11

of it, even advance of the trial, which

19:13

often there is, that it would be

19:15

lunacy to let that person out, particularly

19:17

in domestic violence situations. So I just

19:20

want to understand what the view is on

19:22

your side. Yeah, so I am making,

19:24

I'm telling you what the Constitution says.

19:26

So what are our history and tradition

19:28

and what? You're scapegoating the Constitution. No, no,

19:30

I'm not. Actually, I agree with it. So

19:32

I'll, I'll, I'll own up to it. So

19:35

basically, you can't just arrest somebody and then.

19:37

the arrest alone be the basis for putting

19:39

them behind bars. What you can do, I

19:41

do think it's you, yes, you can detain

19:43

dangerous people, but you have to go through

19:46

the procedure that we use for anyone we

19:48

think is dangerous. So I think in some

19:50

cases it's easy because you have the evidence

19:52

of the crime that you're accusing them of,

19:54

and that's what you put before the judge

19:57

when you say, yeah, look, I've clear and

19:59

convincing evidence this. person is a danger,

20:01

here it is. What I think the

20:03

court ended up approving in Salerno though

20:05

was to create a situation where the

20:08

government has to show essentially nothing. I

20:10

mean it's kind of incredible. So in

20:12

the federal system we are now at

20:14

the point that 75% of all the

20:17

people in federal court are detained before

20:19

they've ever been convicted. And the reason

20:21

for that is largely driven by the

20:23

fact that Congress just said, you know

20:25

what? Anytime you're arrested for a drug

20:28

crime, we're presuming you're dangerous. So, you

20:30

know, your example makes sense, right? It's

20:32

a domestic violence case. You have a

20:34

witness testify about the fact that they're

20:37

afraid of being harmed again. That's a

20:39

whole different ball of wax than just

20:41

saying, yeah, you sold drugs. And you

20:43

know what, we Congress, we just think

20:46

generally people who sell drugs. They're scary.

20:48

So let's just, let's lock them up

20:50

before they've ever had a jury of

20:52

their peers find them guilty, before they

20:54

ever pleaded guilty, you know, before they

20:57

ever got any of their constitutional due

20:59

process. And I think, you know, I

21:01

definitely understand one of the reasons I

21:03

wanted to write the book. was because

21:06

I think that everyone has just grown

21:08

so used to the world we live

21:10

in now. That it's just, you know,

21:12

it's been, for Salerno, it's been 40

21:15

years since the court said this was

21:17

okay, and it's been 50 years since

21:19

that D.C. law. And what's interesting to

21:21

me is that Nixon achieved exactly what

21:24

he wanted. He wanted to change what

21:26

people thought was acceptable, because up until

21:28

that point, no one thought that was

21:30

acceptable. And you know, that might be

21:32

necessary in moderation for safety, which I

21:35

agree. becomes accepted to the point that

21:37

you use it routinely and then you

21:39

overuse it. And that is clearly what

21:41

we have done when it comes to

21:44

pretrial detention. You know, we have people,

21:46

if you go into facilities around the

21:48

country and you see who's their pretrial,

21:50

most of those people do not need,

21:53

they're not, you know, handable lector, they're

21:55

not people who are in there for

21:57

domestic violence, you know, these are people

21:59

who they're just being detained, frankly, because

22:01

prosecutors figure, why not. to be blamed

22:04

if they get out and they do

22:06

something bad. And judges who are elected

22:08

in most places, they do the same

22:10

thing. They just, okay, fine, you know,

22:13

let's just lock them up. And even

22:15

in the federal system where the judges,

22:17

you know, have life tenure, they're very

22:19

unthinking about just, okay, well, there's these

22:22

presumptions, you know, you're presumed dangerous, you

22:24

were charged with a drug crime, fine.

22:26

And so what I'm hoping is to

22:28

get people to kind of take a

22:30

step back up, the most carceral nation

22:33

on earth, by the way, is you

22:35

just kind of do this without thinking

22:37

about it, its necessity in all these

22:39

cases. Am I correct that in New

22:42

York State, one can't move for pretrial

22:44

detention based on dangerousness? So New York

22:46

is the only state that has kept

22:48

the traditional rule, which by the way,

22:51

I think... And that has not been

22:53

necessarily the most popular position in New

22:55

York State, correct? No, it's not politically

22:57

none of this stuff is popular. So,

23:00

you know, the other point of the

23:02

book is that the court just caves

23:04

just caves to the... pressure of none

23:06

of the stuff that I am talking

23:08

about in that book would be politically

23:11

popular to do. And I think that's

23:13

one of the reasons why the court

23:15

doesn't want to stop the government. They

23:17

want to let the government do the

23:20

thing that's popular. In New York, you

23:22

know, where it's just dangerous, I will

23:24

say, because it's important to mention that

23:26

Even when you don't allow it, which

23:29

no one ever used to think you

23:31

could, you know, it was the case

23:33

that judges and prosecutors found ways to

23:35

detain people anyway, you know, so, you

23:37

know, because you are allowed to detain

23:40

people for being a flight risk for

23:42

witness intimidation. And you can set a

23:44

bail amount. And I think what you

23:46

see in New York, for example, is

23:49

a lot of judges set the bail

23:51

amount not really based on whether someone

23:53

is a risk of failure. extraordinarily high

23:55

levels. But on this issue of things

23:58

used to be different, and the Supreme

24:00

Court made decisions of a certain stripe,

24:02

you know, we just get used to

24:04

it, and maybe we shouldn't. I'm just

24:06

was thinking that some of these cases

24:09

you mentioned, obviously, given the theme of

24:11

your book, are things that have been

24:13

not protective of defendant's rights, and have

24:15

contributed to the mass incarceration problem, no

24:18

question. But during the same period, there

24:20

were also, I think you acknowledge this,

24:22

there were a series of seminal Supreme

24:24

Court decisions that I don't imagine were

24:27

super popular at the time, that we

24:29

have grown accustomed to and believe that

24:31

that's the way that things should go

24:33

in the other direction. For example, Miranda,

24:35

for example, Matthew Ohio on the exclusionary

24:38

rule, Gideon V. Wainwright, right. People are

24:40

surprised to learn. that it wasn't until

24:42

the 1960s that you got a lawyer

24:44

if you couldn't afford one. So how

24:47

do you how do you square the

24:49

decisions you talk about in your book

24:51

in the one direction and these very

24:53

monumental protections of defendants in ways that

24:56

by the way are also surprising but

24:58

in the other direction? Yeah, so and

25:00

I actually think that in part the

25:02

Supreme Court, it's the reaction. to how

25:05

the public reacted to cases like map

25:07

and Miranda in particular is what leads

25:09

the court to back off on going

25:11

that direction any further because the pendulum

25:13

yeah so the first case that chronologically

25:16

in the list that I'm talking about

25:18

that where the court really kind of

25:20

and I should just say methodologically so

25:22

people know I'm not just picking six

25:25

cases I disagree with. There's way more

25:27

than six. I would need a multi-volume

25:29

treatise, but the six are selected because

25:31

if you are a textualist, if you

25:34

think we just got to go with

25:36

what the Constitution says, if you're someone

25:38

who's into original meaning. So you want

25:40

to know the history. If you're someone

25:42

who's like, no, the court just needs

25:45

to adhere to longstanding precedent. Or if

25:47

you're someone who cares about equality and

25:49

liberty. Like, these are six cases. They

25:51

fail on all the benchmarks. So that's

25:54

why I picked them. And so what's

25:56

interesting is in. Terry versus Ohio, which

25:58

is a case that comes to the

26:00

court in 1968. So the year of

26:03

1968 is a presidential election. And in

26:05

the presidential election, the Supreme Court's prior

26:07

decisions of MAP, you know, the exclusionary

26:09

rule case, where even if evidence had

26:11

been obtained. in violation of the Constitution,

26:14

you can't use it in somebody's case.

26:16

And Miranda, where you give the warnings

26:18

so that people understand their rights, not

26:20

popular decisions. In fact, so not popular

26:23

that in the 1968 election, Richard Nixon

26:25

and George Wallace basically run against the

26:27

court. They say this is a court

26:29

as lawless. There's impeach Earl Warren signs

26:32

on people's lawn. So, you know, you'd

26:34

have to imagine we'd be like for

26:36

us, it would be that instead of

26:38

just those ubiquitous Trump So the court

26:41

knows this, and actually if you go

26:43

back and you read the court's papers,

26:45

the justice's papers, in Terry v. Ohio,

26:47

which is this case that gets the

26:49

Supreme Court in 1968, and it asks,

26:52

can the police stop somebody and then

26:54

frisk them for weapons, even if the

26:56

police don't have probable cause? Because under

26:58

the Constitution, you need probable cause. But

27:01

that case gets to the Supreme Court

27:03

in 1968. While there are these signs

27:05

on the lawn that say impeach or

27:07

a warrant, and you look in the

27:10

justice's papers and it is really clear,

27:12

they are basically saying to each other,

27:14

we can't go against the police again.

27:16

Like, like, we got those too, but

27:18

like, seriously, we are, they're really afraid.

27:21

They're focused on the politics. They try

27:23

to figure out how to write this

27:25

opinion. At first, they were going to

27:27

say, well, there is probable cause in

27:30

that case, but you can't under the

27:32

facts of the case. We can talk

27:34

about it if you want to. So

27:36

they like struggle to find a way

27:39

to write the opinion, and it's really

27:41

interesting to see how explicit they are.

27:43

being attentive to the politics of the

27:45

time that they're living in. And so

27:47

yes, you're right, that we did have

27:50

these. And I think people tend to

27:52

think of the Supreme Court because of

27:54

MAP and Miranda, like this is the

27:56

court that cares about defendant's rights. And

27:59

I think what they forget is like

28:01

those are truly outliers. And when you

28:03

look at, for example, the cases in

28:05

my book, you realize actually most of

28:08

the time the court isn't out there

28:10

standing up for those rights. They're actually

28:12

as fearful. as every other American voter

28:14

who votes for the tough on crime

28:17

stuff, and they cave, and they allow

28:19

these things to happen. So for a

28:21

moment, expanding beyond criminal law, do you

28:23

think the current Supreme Court cares about

28:25

political blowback when it decides cases like

28:28

Dobbs? Are they, how do you compare

28:30

the current court to the Warren Court

28:32

in the way that you've been talking

28:34

about as being afraid of public opinion?

28:37

Doesn't seem that's the problem anymore. Yeah,

28:39

well, so you know, I actually think

28:41

these cases in my book are super

28:43

interesting test cases for this court because

28:46

as I said I go through all

28:48

the constitutional methodologies, but I do spend

28:50

a fair amount of time on the

28:52

originalist points that, you know, the framers

28:54

came back and saw any of these,

28:57

they would be like. Are you kidding

28:59

me? No way. And when I say

29:01

the history is clear in these cases,

29:03

you know, if you don't want to

29:06

buy the book, you just have to

29:08

trust me then when I tell you,

29:10

these are slam dunk. Buy the book

29:12

folks. Yeah, but these are slam dunk

29:15

originalist cases, you know, and I'm just

29:17

gonna put my former Scalia hat on

29:19

here for a minute, so I'll tell

29:21

your listeners, like, I do know a

29:23

thing or two. a Democrat and not

29:26

a Republican. And one thing that has

29:28

always interested me is that it's the

29:30

Republicans who go on offense in using

29:32

originalism, right? They're always the ones that

29:35

want to kind of like, let's go

29:37

back, let's dig it up, let's find

29:39

things. And I feel like the left

29:41

has some lost opportunities to find some

29:44

examples like the ones in my book

29:46

where if you are a originalist and

29:48

you mean it, you have to agree

29:50

these cases are also... just as bad,

29:53

frankly, in many cases worse because the

29:55

history is so clear here. So what

29:57

would be interesting to me is to

29:59

put these cases to the test before

30:01

the current Supreme Court and see what

30:04

they think, because I think that in

30:06

the cases where the court has said

30:08

their originalist and they have to go

30:10

back to, you know, it just so

30:13

coincidentally happens to correspond to beliefs they

30:15

feel super strongly about personally. So even

30:17

if there is political blowback, I think

30:19

you might find the justices saying, you

30:22

know, well, that's what we do, you

30:24

know, we have to, that is the

30:26

constitutional government we live under, there will

30:28

be blowback, but we're supposed to protect

30:30

against the tyranny of the majority. And

30:33

I think these justices see it vividly

30:35

when it's a right they care about.

30:37

or it's an issue they care about.

30:39

So I think they're not super sympathetic

30:42

to abortion rights. So for them, overruling

30:44

Roe versus Wade, you know, just happens

30:46

to comport with their, well, lo and

30:48

behold, it's also just their personal view

30:51

of things. These cases are interesting because

30:53

I don't think they are. You know,

30:55

I don't think that the justice is,

30:57

you know, a majority of them, you

30:59

know, feel super strongly about defendant rights.

31:02

And so the question would be, are

31:04

they willing to do something that's unpopular

31:06

their personal cause. And you know, I

31:08

have my guess is what the answer

31:11

might be, but I like to believe

31:13

that maybe they would be principled. You

31:15

know, maybe this would be a way

31:17

for them to show, yes, it's actually

31:20

fealty to this interpretive methodology, and I'm

31:22

not results oriented. And let me show

31:24

you by voting this way in a

31:26

case that produces an outcome that doesn't

31:29

actually match up with my politics. Can

31:31

you engage in a hypothetical with me?

31:33

Sure. So now let's say we're five

31:35

years from now. the Trump administration's approach

31:37

to criminal justice. What do you imagine

31:40

that book would focus on, and just,

31:42

you know, the way I've been thinking

31:44

about it, and we alluded to it

31:46

earlier, is there doesn't seem to be

31:49

a lot of coherence. Pambondi says we're

31:51

not going to prosecute or enforce the

31:53

laws relating to certain white-collar crimes like

31:55

the Foreign Corrupt Practices Act, the Foreign

31:58

Agent registration act, corruption generally. violence, yeah,

32:00

we want to enforce those laws, but

32:02

unless it was done at the capital,

32:04

then you get a buy, both through

32:06

pardons and otherwise. What's that book, the

32:09

Rachel Barco book, going to look like

32:11

in five years about the Trump administration

32:13

of justice? I don't know. I might

32:15

be writing it from Malta because I'll

32:18

have a... I'll have left, but I

32:20

think that book is going to talk

32:22

about the use of the enforcement apparatus

32:24

in ways that look authoritarian, because that

32:27

is what I'm fearful is the common

32:29

thread of the things that you just

32:31

talked about. Because otherwise it looks inconsistent,

32:33

like, well, how can you say, you

32:35

want really great enforcement for, let's say,

32:38

drug crimes, but at the same time

32:40

you're decimating the FBI and... prosecutors' offices

32:42

around the country and you're laying people

32:44

off. You know, I think, you know,

32:47

what you're seeing first and foremost among

32:49

this administration is a politicization of what

32:51

it means to enforce crime. And so

32:53

he would like to have people who

32:56

work for him throughout the executive branch

32:58

who are loyalists, you know, people who

33:00

buy into this idea that what Trump

33:02

says is the law and is correct.

33:05

And and and they also buy into

33:07

this theory that you know, the president

33:09

controls the whole executive branch and gets

33:11

to tell them what to do, including

33:13

the prosecutors. And this particular president, because

33:16

this particular president believes that there's a

33:18

deep state that has weaponized the government

33:20

against him and people like him, you

33:22

know, the claim is that So the

33:25

people who work for him now need

33:27

to kind of go about charging the

33:29

people who engaged in the weaponization. Now,

33:31

you know, it's total double speak and

33:34

actually it's Trump who looks like he's

33:36

getting ready to prosecute people who are

33:38

his enemies and that he doesn't like.

33:40

But I think it's turning the federal

33:42

criminal. enforcement structure into basically a group

33:45

of loyalists who just does what he

33:47

wants. And of course, you know, if

33:49

that sounds familiar to you, it's certainly

33:51

not an American tradition, but it is

33:54

what you would see in authoritarian countries.

33:56

I can't let you go, Rachel, obviously,

33:58

without talking about another area of expertise

34:00

you have within criminal law, and that

34:03

is the pardon power. I channel you

34:05

in my class from time to time,

34:07

because you can't be there. So we

34:09

had a series of pardons. both granted

34:11

by the and commutations granted by Joe

34:14

Biden, a whole so of which were

34:16

granted by President Trump relating to the

34:18

January 6th activities, quickly your thoughts on

34:20

either or both. Oh, yeah, the thoughts

34:23

are, or it's so awful. How are

34:25

we going to transcribe, ugh? Yeah, I

34:27

know you need a facial expression of

34:29

complete despair. I really, I... Was not

34:32

surprised by the Trump pardons because he

34:34

said he was going to do it.

34:36

He did it And I will say

34:38

though that I am surprised at the

34:41

sweep Because he never fully committed that

34:43

it was going to be everybody and

34:45

he certainly didn't say that he would

34:47

have his Department of Justice willing to

34:49

say, not just what you did on

34:52

January 6, but you know, had you

34:54

been investigated for other things, the pardon

34:56

includes that too. You know, it's like,

34:58

it's like a complete pardon for anything

35:01

you might need us for, pardon. But

35:03

you're pro-pardon, Rachel, aren't you? I am

35:05

pro-pardon, and that's why this is so

35:07

depressing because the pardon power is a...

35:10

a power that is really only checked

35:12

by politics. Like you check that by

35:14

electing people with the good sense and

35:16

judgment who exercise it in ways that

35:18

make it equally available to all who

35:21

deserve it and they don't just give

35:23

it to their friends and their cronies.

35:25

And both the Biden administration and the

35:27

Trump administration, the reason that both of

35:30

them give me worries is that they

35:32

did show, you know, favoritism to people

35:34

in their lives and even Biden. had

35:36

positive recommendations from his partner attorney. There's

35:39

an article in the Wall Street Journal

35:41

about this. She had vetted them. It's

35:43

so hard to get a positive recommendation

35:45

from the partner attorney. Those people filed

35:47

their applications. They did everything they were

35:50

supposed to. There were hundreds of them,

35:52

and he just shut the door behind

35:54

him when he left office and didn't

35:56

grant any of them. And that to

35:59

me is disgusting. should be faulted for

36:01

that and the Trump administration as it's

36:03

underway, you know, they're right back to

36:05

where they left off in Trump 1.0.

36:08

where it's cronies, it's people who on

36:10

Fox News are telling you you should

36:12

grant things, you know, they're trying to

36:14

send out a message, if you're loyal

36:16

to me, then I'll have your back

36:19

in federal prosecutions. You know, so it's

36:21

a bad time for the pardon power,

36:23

it really is because my worry is

36:25

that people are going to think that's

36:28

just what it's for, when in fact,

36:30

it's a really important power for error

36:32

correction. We do not have a justice

36:34

system that is error- system, there really

36:37

is no other corrective than the president,

36:39

which is kind of ridiculous. But that's

36:41

true. We don't have parole. Compassionate release

36:43

is very narrow. Depends on the judge

36:46

that you get. And so you really

36:48

need. have the president have a review

36:50

process in place that has a check

36:52

on your sentence. And so I think

36:54

you're seeing with Biden at the end

36:57

and what we're looking at now in

36:59

the Trump administration, you know, does not

37:01

give me a lot of cause of

37:03

hope that people are going to say,

37:06

oh yes, I see this is a

37:08

really important thing and I want to

37:10

support it. I think they're going to

37:12

think, why do we have this power

37:15

at all? And so I guess what

37:17

I would just say is in this

37:19

case, you for your... Time, Rachel, congratulations

37:21

on the book. Justice abandoned, had the

37:23

Supreme Court ignored the Constitution and enabled

37:26

mass incarceration. And I will say there's

37:28

only one other point of scholarship of

37:30

yours that I take issue with, and

37:32

I don't want to debate it because

37:35

it's my show. And that is, you

37:37

favor pleaded when you should favor pled.

37:39

Oh, yeah, I do favor pleaded. Yeah.

37:41

OK. We'll debate that another time. Thanks

37:44

so much. That'll be a good episode.

37:46

Thanks, Rachel. For

37:49

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