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Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration
An influential legal scholar argues that the Supreme Court played a pivotal role in the rise of mass incarceration in America.
With less than 5 percent of the world’s population and almost a quarter of its prisoners, America indisputably has a mass incarceration problem. How did it happen? Tough-on-crime politics and a racially loaded drug war are obvious and important culprits, but another factor has received remarkably little the Supreme Court. The Constitution contains numerous safeguards that check the state’s power to lock people away. Yet since the 1960s the Supreme Court has repeatedly disregarded these limits, bowing instead to unfounded claims that adherence to the Constitution is incompatible with public safety.
In Justice Abandoned, Rachel Barkow highlights six Supreme Court decisions that paved the way for mass incarceration. These rulings have been crucial to the meteoric rise in pretrial detention and coercive plea bargaining. They have enabled disproportionate sentencing and overcrowded prison conditions. And they have sanctioned innumerable police stops and widespread racial discrimination. If the Court were committed to protecting constitutional rights and followed its standard methods of interpretation, none of these cases would have been decided as they were, and punishment in America would look very different than it does today.
More than just an autopsy of the Supreme Court’s errors, Justice Abandoned offers a roadmap for change. Barkow shows that the originalist methodology adopted by the majority of the current Court demands overturning the unconstitutional policies underlying mass incarceration. If the justices genuinely believe in upholding the Constitution in all cases, then they have little choice but to reverse the wrongly decided precedents that have failed so many Americans.
With less than 5 percent of the world’s population and almost a quarter of its prisoners, America indisputably has a mass incarceration problem. How did it happen? Tough-on-crime politics and a racially loaded drug war are obvious and important culprits, but another factor has received remarkably little the Supreme Court. The Constitution contains numerous safeguards that check the state’s power to lock people away. Yet since the 1960s the Supreme Court has repeatedly disregarded these limits, bowing instead to unfounded claims that adherence to the Constitution is incompatible with public safety.
In Justice Abandoned, Rachel Barkow highlights six Supreme Court decisions that paved the way for mass incarceration. These rulings have been crucial to the meteoric rise in pretrial detention and coercive plea bargaining. They have enabled disproportionate sentencing and overcrowded prison conditions. And they have sanctioned innumerable police stops and widespread racial discrimination. If the Court were committed to protecting constitutional rights and followed its standard methods of interpretation, none of these cases would have been decided as they were, and punishment in America would look very different than it does today.
More than just an autopsy of the Supreme Court’s errors, Justice Abandoned offers a roadmap for change. Barkow shows that the originalist methodology adopted by the majority of the current Court demands overturning the unconstitutional policies underlying mass incarceration. If the justices genuinely believe in upholding the Constitution in all cases, then they have little choice but to reverse the wrongly decided precedents that have failed so many Americans.
320 pages, Kindle Edition
Published March 4, 2025
30 people are currently reading
380 people want to read
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Displaying 1 - 6 of 6 reviews
July 22, 2025
Superb.
October 5, 2025
“Justice Abandoned” is about 6 key Supreme Court cases that contributed to the system of mass incarceration in America today, in which ~2 million people are behind bars (including about 400,000 people awaiting trial making a mockery of “innocent until proven guilty”).
According to the author, these cases were wrongly decided accordingly to any philosophy of constitution interpretation (originalism or more progressive approaches).
I found this book to be extremely engaging and persuasive and would definitely consider reading it again.
According to the author, these cases were wrongly decided accordingly to any philosophy of constitution interpretation (originalism or more progressive approaches).
I found this book to be extremely engaging and persuasive and would definitely consider reading it again.
November 28, 2024
Reviewed for Library Journal; full review appears there.
June 7, 2025
One of the most important books I have read in quite a while and I wholeheartedly recommend it to anyone interested in the politics of the Supreme Court.
That sentence read like an oxymoron: the whole point of the Supreme Court is to make sure it is apolitical, that regardless of which party is in power, the Court keeps a steady hand in guiding the essence of the United States forward. Unfortunately, that goal has long become a fantasy. What readers will learn from the book is that the current Trump era is not the first time that the Court has capitulated to the whim of politics -- they already lost their grip on the Constitution in the war-on-drugs craze in the 70s. The difference between now and then is that back then, the Court may have only surrendered in few specific areas (e.g., criminal cases), yet today the capitulation is almost full-on. We might as well consider the Court as the right-wing authoritative government's rubber-stamp (for one case in example, see the Court granting full immunity to the president for official acts in 2024).
Sometimes, I fantasize that the Second Amendment folks might be enticed to join the fight to revert the six unconstitutional rulings listed in the book (damn, isn't that another piece of oxymoron, the Supreme Court issuing unconstitutional rulings). After all, preserving the original meaning of the Constitution means to preserve them all, regardless of whether it is the Second, or the Eighth, or the Fourteenth Amendment. Yet those Second Amendment folks are only "pick-up artists", just like their peers in fake Christianity, where they only pick up the sentences that align with their politics to preach, while ignoring all the other counter arguments in the same scripture. I will stop right here before turning this review into another rant.
Actually, there is not much to review from my end. The book is well-written, maybe a bit too "lawyerly" from time to time. It is not a light reading but a worthwhile one. I will let the quotes speak for themselves.
Memorable Quotes and additional rant are available on my Medium post (there are too many, have to post it somewhere else).
That sentence read like an oxymoron: the whole point of the Supreme Court is to make sure it is apolitical, that regardless of which party is in power, the Court keeps a steady hand in guiding the essence of the United States forward. Unfortunately, that goal has long become a fantasy. What readers will learn from the book is that the current Trump era is not the first time that the Court has capitulated to the whim of politics -- they already lost their grip on the Constitution in the war-on-drugs craze in the 70s. The difference between now and then is that back then, the Court may have only surrendered in few specific areas (e.g., criminal cases), yet today the capitulation is almost full-on. We might as well consider the Court as the right-wing authoritative government's rubber-stamp (for one case in example, see the Court granting full immunity to the president for official acts in 2024).
Sometimes, I fantasize that the Second Amendment folks might be enticed to join the fight to revert the six unconstitutional rulings listed in the book (damn, isn't that another piece of oxymoron, the Supreme Court issuing unconstitutional rulings). After all, preserving the original meaning of the Constitution means to preserve them all, regardless of whether it is the Second, or the Eighth, or the Fourteenth Amendment. Yet those Second Amendment folks are only "pick-up artists", just like their peers in fake Christianity, where they only pick up the sentences that align with their politics to preach, while ignoring all the other counter arguments in the same scripture. I will stop right here before turning this review into another rant.
Actually, there is not much to review from my end. The book is well-written, maybe a bit too "lawyerly" from time to time. It is not a light reading but a worthwhile one. I will let the quotes speak for themselves.
Memorable Quotes and additional rant are available on my Medium post (there are too many, have to post it somewhere else).
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November 5, 2025Did not know most of these court cases. While the judiciary has clearly caused a lot of problems for the criminal justice system, I wouldn’t really agree with Barkow and progressive prosecutors about finding solutions through the court as well. Too slow!
August 20, 2025
Much good analysis here, showing the effects of decisions along with the bad reasoning inside them.
Displaying 1 - 6 of 6 reviews