When Yale Law School’s Alexander Bickel died in 1974, George Will declared him “the keenest public philosopher of our time”—and rightly so. In his seminal 1962 book, The Least Dangerous Branch, Bickel argued that although the Supreme Court plays a crucial role in expounding and defending constitutional principles, the Court must wield its power carefully so as not to degrade republican virtue and compromise self-government. In the 1960s, as the Supreme Court’s activism far exceeded those prudential limits, Bickel became the Court’s most eloquent public critic, expressing his vivid disapproval in the pages of COMMENTARY, the New Republic, the Public Interest, and in his own books. Years later, Justice Samuel Alito would credit these writings with inspiring him to attend Bickel’s Yale Law School.
Reviewing The Morality of Consent, Bickel’s posthumous book on constitutional theory, Robert Bork concluded that it “is hard to believe the work will not prove seminal, that the tradition will not be elaborated by others.” But Bork’s prediction proved wrong. Conservatives did not elaborate Bickel’s work; they rejected it, focusing their energies on other constitutional theories, such as originalism, that departed from or even contradicted Bickel’s contentions. Bork himself would eventually reject Bickel and describe The Least Dangerous Branch as ultimately a failure.
This year marks the 50th anniversary of The Least Dangerous Branch. The round number provides a suitable opportunity to examine the book, Bickel’s subsequent work, and the case of his abandoned legacy. For in leaving him behind, the right discarded a tradition of legal scholarship whose place could never have been satisfactorily supplanted by originalism alone.
The Least Dangerous Branch was first and foremost a defense of Brown v. Board of Education. Today, the Supreme Court’s decision to declare school segregation unconstitutional stands as the Court’s finest hour. But when the decision was first issued in 1954, it posed a stark challenge to progressive constitutional theory, dividing two generations of liberal legal intellectuals no less sharply than it divided North from South.
When political progressivism emerged in the late 19th and early 20th centuries, progressives called on judges to practice judicial restraint—if only because the movement’s opponents had proved so successful in using the courts to thwart progressive reforms. The prime example of this success came in Lochner v. New York (1905). The Supreme Court held that New York’s Bakeshop Act, which improved working conditions in bakeries and limited bakers’ working hours, violated the “liberty of contract” implicitly protected by the 14th Amendment and therefore infringed on the rights of the bakery owner to conduct contractual business with willing parties as he saw fit.
In response, progressives developed legal doctrines delegitimizing the judicial recognition and protection of economic constitutional rights, such as the freedom of contract. James Bradley Thayer pioneered this effort in an 1893 Harvard Law Review article arguing that courts should strike down legislation only when the bill’s unconstitutionality is not probable but indisputable—not merely a legislative “mistake” but “a very clear one,” “so clear that it is not open to rational question.” Thayer’s work was followed by a generation of scholars and judges, including Oliver Wendell Holmes Jr. and Louis Brandeis, who defended the power of states to enforce progressive regulations and, later, the FDR administration’s power to implement the New Deal.
For decades, the conservatives’ hold on the Supreme Court relegated these progressive judicial-restraint arguments to dissenting opinions. Not until the 1930s did the left turn the tide and convince the Court to let stand Washington State’s minimum-wage laws, ending the so-called Lochner era and clearing the judicial path for both progressives’ state reforms and FDR’s national program.
But 20 years later, when the segregation fight reached the Supreme Court in Brown v. Board of Education, this progressive instinct toward judicial restraint posed a stark challenge to the nine justices (eight FDR-Truman appointees and the progressive Republican Chief Justice Earl Warren). With a decidedly nonprogressive policy at stake, deference to legislative authority lost its luster. Although the nine justices overcame whatever doubts they might have had and ruled in favor of integration before Congress had legislated, some old-guard progressives simply could not accept judicial intervention, even in the service of so honorable an aim as desegregation.
Brown’s most damning progressive critic was Learned Hand, generally recognized today as the greatest federal judge not to ascend to the Supreme Court bench. In a 1958 lecture series at Harvard, the New York judge drew a direct line between the Lochner era and Brown, ruefully concluding that “there can be no doubt that…the old doctrine seems to have been reasserted.” Hand’s criticism was followed just one year later, by Harvard’s Herbert Wechsler, another prominent liberal legal scholar, who was unable to reconcile Brown’s activism with the left’s instinct toward judicial restraint.
Such was the progressive void into which Alexander Bickel stepped. When the Court heard Brown, Bickel was Justice Frankfurter’s law clerk. Born in Romania and immigrating at age 14, Bickel spoke Yiddish, German, Romanian, and Hebrew before ever speaking English. He eventually graduated from the City College of New York and served in the Army before going to Harvard Law School, where he received his degree in 1949.
In clerking for Frankfurter while Brown was pending, he was no detached spectator—in fact, he played a crucial role in the case. In a long memorandum to Frankfurter on the 14th Amendment’s position on segregation, Bickel concluded that “the legislative history of the Amendment is, in a word, inconclusive.” His verdict was adopted by the unanimous Court; the Constitution’s ambiguous requirements freed the Court to decide the case in terms of broader social principle.
When Hand and Wechsler offered their well-publicized criticism of Brown, Bickel was positioned to appreciate their concerns but reject their conclusions.
Bickel faced a formidable theoretical challenge: to respect and channel the Supreme Court’s long-established role in preserving and implementing the Constitution and ensure that the Court would not unduly trammel the nation’s capacity for republican self-government. His answer was The Least Dangerous Branch.
The book begins with first principles. Bickel took the title from Alexander Hamilton’s “Federalist 78,” describing the Supreme Court’s relative lack of power: “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”
Bickel starts from the premise that the Constitution does not specifically grant the Court power to determine whether federal or state laws run afoul of constitutional limits. That power may be implied, and the Constitution’s Framers may well have intended that power to exist, but the document’s text left that preference unsaid. Thus, the Court’s proper role as a constitutional expositor would have to be justified by the deeper, broader principles of constitutional structure and practical experience. Looking to that experience, Bickel identifies three principles that should be considered when contemplating judicial review.
First, there is the “counter-majoritarian difficulty.” Because Congress and the president ordinarily pursue the will of the majority of “the People,” constitutional limits upon those branches exercise “control, not in behalf of the prevailing majority, but against it.” In other words, constitutional limits may function effectively as limits on the will of the majority. Thus, excessive judicial intervention might “weaken the democratic process,” Bickel warns. Habitual recourse to the Court on constitutional matters could encourage the elected branches to shirk their own obligations to heed constitutional limits.
Second, Bickel characterizes the distinction between the role of the Supreme Court and that of the two elected branches as being between “expediency” and “principle.” The president and Congress are the primary agents of expediency. They no doubt want to act on “principle”; they are oath-bound to uphold the Constitution. But “when the pressure for immediate results is strong enough and emotions ride high enough,” they “will ordinarily prefer to act on expediency rather than take the long view.” They will cast votes to satisfy the immediate pressures of the day, or to win the next election, and give less consideration to the Constitution’s more fundamental principles and requirements. Bickel maintains that if we are to have “an institution which stands altogether aside from the current clash of interests, and which, insofar as humanly possible, is concerned only with principle,” it will have to be the Supreme Court; fortunately, Supreme Court justices “have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government.” And while Congress enacts statutes to deal with “abstract or dimly foreseen problems,” the courts “are concerned with the flesh and blood of an actual case,” which provides “an extremely salutary proving ground for all abstractions.”
Third, Bickel considers the Court’s “legitimating” function. Constitutional adjudication does not merely check the other branches when they go too far; it may also “validate” the other branches’ legitimate, constitutional actions in the eyes of the public—including, most important, those who would tend to disagree with the government action in question.
With those three principles in mind, Bickel weighs Thayer’s, Hand’s, and Wechsler’s theories of judicial restraint and finds all wanting. He also rejects Justice Hugo Black, who insisted that constitutional cases could be decided exclusively by reference to the Constitution’s text. While Black insisted that his constitutional decisions rested solely on the Constitution’s “plain words,” Bickel writes that the Constitution, the Framers’ deliberations, and the ratification debates “have almost never been known to yield what Justice Black seeks in them.”
Bickel charts a new course, rooted in “the Lincolnian tension.” Drawing heavily on Crisis of the House Divided, Harry Jaffa’s account of President Lincoln’s constitutional theory and rhetoric, he concludes that constitutional principles could be deduced from national experience, because (as Bickel quotes Jaffa) they “were evolved ‘from within the democratic ethos as perfections of that ethos.’”
Accordingly, in interpreting and applying the Constitution’s text, the Court should be “guided in our search of the past, by our own aspirations and evolving principles, which were in part formed by that very past.” And to achieve that objective, the justices must “immerse themselves in the tradition of our society and of kindred societies that have gone before.”
Finally, the justices must practice the “passive virtues” by agreeing to decide cases—and, in those cases, reaching the fundamental constitutional questions—only when the nation’s experience had rendered the legal question sufficiently ripe.
In his explanation of the Court’s work, Bickel sometimes employs jarringly elitist terms: the justices are “pronouncer[s] and guardian[s]” of constitutional values; they “are inevitably teachers in a vital national seminar.” But those rhetorical flourishes notwithstanding, Bickel stresses that the Court’s work required the justices not to venture too far ahead of the public: “the Court should declare as law only such principles as will—in time, but in a rather immediate foreseeable future—gain general assent.” True, the Court is “a leader of opinion, not a mere register of it,” but in “lead[ing] opinion” the Court must take care to “not merely impose its own.” Only by staying attentive to what is practically attainable could the Court rightly exist “in a society dedicated both to the morality of government by consent and to moral self-government.”
To Bickel, the Court’s work in Brown struck precisely the right balance. It was a decision rooted not in expediency but in principle, in light of the constitutional text, national experience, and present conditions. While the Court’s decision obviously was controversial, especially in the South, it accorded with the nation’s trajectory toward racial equality and thus would probably secure the nation’s consent in the relatively near future (as subsequent history eventually confirmed). Also, the Court took care not to overstep its bounds, tempering its bold statement of the law with a much more pragmatic schedule for compliance. The test of school-district compliance “would be whether it was moving in good faith toward integration ‘with all deliberate speed.’” The Court left the lower courts and the States’ political officers to work out “what expedients of accommodation and compromise they deemed necessary,” re-intervening only to remedy a school district’s patent lack of good faith.
But the Warren Court did not stop with Brown. And as it ventured into more and more controversial territory, Bickel became increasingly dissatisfied—and increasingly vocal. In the books and articles that followed The Least Dangerous Branch, Bickel hotly criticized the Court’s failures to live up to the model that he had sketched out in his seminal work. He saw the Court’s excesses most clearly in the “Reapportionment Cases”—i.e., the Court’s attempts to impose a “one man, one vote” standard on state and local electoral districts, despite the long national history of drawing district lines not only on the basis of population but also in light of other traditional interests, such as urban-rural divides.
In a COMMENTARY essay titled “Reapportionment & Liberal Myths,” and in the full set of essays adapted for Bickel’s next book, Politics and the Warren Court(1965), Bickel chastises the Court for “overestimat[ing] the possibilities of law as a method of ordering society and containing social action.” And, consistent with his worry that judicial activism would undermine republican virtue, he simultaneously criticizes the activists who urged the Court’s overreach: They “forget the limits of effective legal action, and attempt to surrender to the Court the necessary work of politics.”
Law is “the process of establishing norms that will not need to be frequently enforced,” Bickel urges. “It is necessarily gradual and slow. It aims at stability and values order.” The Court’s efforts on reapportionment, as well as in First Amendment religion cases and its attempts to remedy de facto segregation (as opposed to explicitly state-imposed segregation), far exceeded the Court’s practical capabilities and thus undermined its own legitimacy and efficacy.
With the 1970 publication of his next landmark book, The Supreme Court and the Idea of Progress, Bickel made it clear he was convinced that the Warren Court’s single overarching goal was to create the “Egalitarian Society.” Where progressives had opposed the Lochner Court’s imposition of free-market social policy, the Warren Court was now imposing its own social-policy agenda in cases such as Griswold v. Connecticut (1965), which struck down state laws preventing married persons from obtaining contraceptives.
Bickel stresses that “the Court is not the place for the heedless break with the past.” If the Court continued to impose its own values so detached from tradition, then the institution of judicial independence would be “inexplicable.” Instead, Bickel urges the Court to commit itself to the “passive virtues” introduced in The Least Dangerous Branch. Rather than “making the initial decision,” the justices should allow society at large to experiment, leaving the Court in a position “to ratify or modify the private ordering that has taken place, and to judge the experience.”
In an essay republished in the last book he completed, The Morality of Consent (1975), Bickel contrasts two visions of Western political thought: a “liberal contractarian model” resting on idealized individual rights and a conservative “Whig” model beginning “not with theoretical rights but with a real society.” Bickel specifically associated the latter with Edmund Burke and added, “this is my own model.”
In this book, Bickel acknowledges a second influence that was present, but perhaps too often unnamed, in his earlier works: James Madison. The Least Dangerous Branch’s distinction between principle and expediency, for example, calls to mind Madison’s argument in “Federalist 49”: “It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” In The Morality of Consent, Bickel credits Madison for our “disorderly system”; in Bickel’s words, “this is not an arrangement whose justification is efficiency, logic, or clarity. Its justification is that it accommodates power to freedom and vice versa. It reconciles the irreconcilable.”
He then offers an urgent Madisonian warning in a deeply pessimistic passage. Bickel acknowledges the possibility that our system of government, including the Court, may not be sustainable without participants of requisite character and good faith. The conflict among political actors, and among litigants, “works well only when there is forbearance and continence on both sides. It threatens to break down when the adversaries turn into enemies, when they break diplomatic relations with each other, gird for and wage war.” Bickel’s great fear, in the end, was that the Warren Court and its successors would not merely ignore the nation’s capacity for republican self-government, but actively undermine it.
In fact, he saw precisely that in the Watergate scandal. In his last COMMENTARY essay published during his life, just as the scandal was reaching a boiling point, Bickel argued that the Warren Court’s judicial activism, President Nixon’s crimes, and pervasive civil disobedience were all different manifestations of the same “assault upon the legal order,” and that it came as much from Chief Justice Warren as from anyone. The centralization of power in the presidency and Nixon’s abuse of that power were each merely “a leaf from the Warren Court’s book,” as the modern presidency, like the Court, had come to be driven by power, populism, and “moral urgency,” instead of pragmatism, gradualism, and institutionalism.
“Watergate,” he concludes, was “the latest assault in an age of assaultive politics. We cannot survive a politics of moral attack.”
By the time Bickel wrote those words, his break from the left was long complete. At Yale’s 1969 alumni weekend, activists hanged him in effigy. More thoughtful critics also weighed in, concluding that Bickel’s later writings broke not only with the left, but also with his own work in The Least Dangerous Branch.
In Democracy and Distrust, John Hart Ely asserts that Bickel’s appreciation of tradition was absent in The Least Dangerous Branch; only after Bickel grew frustrated with the Warren Court, Ely argues, did he turn to “a pastiche of themes remembered, with particular stress this time on one that hadn’t much attracted the young Alex Bickel: tradition.”
But as the foregoing quotations from The Least Dangerous Branch make clear, tradition was at the heart of Bickel’s work from the start. Indeed, even before writing that first book, he privately celebrated Brown in traditionalist terms: In a letter to Justice Frankfurter, he declared Brown to be “deeply, morally right, in tune with the finest thought and feeling that our tradition offers, and in tune with the world that is abuilding.”
Tradition attracted “young Bickel”; it simply hadn’t attracted young John Hart Ely and other liberal legal scholars who applauded Bickel’s defense of Brown and his call for a limited retreat from extreme Progressive Era judicial inactivity. This failure to appreciate the focus on tradition mirrored the left’s persistent failure to see Oliver Wendell Holmes’s own concession to tradition in his famous Lochner dissent: While Holmes disclaimed the Court’s power to enforce laissez-faire principles, even he conceded that the Court might still need occasionally to give constitutional protection to “fundamental principles as they have been understood by the traditions of our people and our law.” The skeptical Holmes may not have truly believed that such principles and traditions existed, but Bickel certainly did.
The right misunderstood Bickel, too. Drawn to him by his criticism of the Warren Court, conservatives too often shared Ely’s misapprehension of his supposed evolution.
Even Bickel’s old friend Robert Bork assumed a substantial gulf between Least Dangerous Branch and Bickel’s later work. In The Tempting of America (1990), Bork groups Bickel with other “theorists of liberal constitutional revision,” asserting that Bickel’s later work broke substantially with Least Dangerous Branch, an “early and provocative” book that Bickel wrote “when he was a very young professor and, I think, came to be quite dubious about it in later years.” Bork’s characterization of Bickel’s supposed private doubts are difficult to square with Bickel’s body of work, which was consistent from start to finish in terms of the ideals to which the Court and the public should aspire.
Bork’s and Ely’s misinterpretations are understandable. Each saw in Bickel’s work what they needed to see: for Ely and the left, a defense of Brown; for Bork and the right, a critique of the Warren Court’s excesses. But in the end, each erred by seeing only half of the picture.
When the right left Bickel behind, its reason was clear. In his lifetime, he had been a singularly effective critic of the Warren Court, and his death coincided with the birth of what came to be known as conservative originalist jurisprudence. The core tenet of this approach was best presented by Justice Scalia in his 1997 book, A Matter of Interpretation: “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsman intended”—nor, for that matter, the “current meaning” of the document.
Originalism gave conservatives something that even Bickel hadn’t offered: a comprehensive method of constitutional interpretation. Where Bickel called much more generally for a judicial methodology relying on reason rooted in tradition and experience, originalists expounded a specific and succinct theory: Bickel would not have been an originalist. In his books, he repeatedly criticizes Justice Hugo Black, who appears as a sort of paleo-originalist. Bickel criticized Black for assuming that the Constitution’s “objective” meaning can be ascertained and applied by impartial judges. For Bickel, this was simply a matter of prudence: “Nothing is easier for strong-minded, passionate men, the true believers, who are given, in a phrase of Richard Hofstadter, to ‘self-assertive subjectivism’—nothing is easier for such men than to attribute their passionate beliefs to a monolithic abstraction called the people or the Constitution.”
Many conservatives today would respond that Bickel’s alternative is no better. Judges are not “naturally appropriate expositors of the aspirations of a particular age,” Justice Scalia writes in A Matter of Interpretation (1997).
But to focus exclusively on the question of how justices ideally should interpret the Constitution ultimately misses Bickel’s more important point: the need for Burkean prudence and humility carrying out the judicial task in practice. For even if the law’s requirements are best found in the written law’s original public meaning, there remains the question of what to do when that meaning is not readily apparent—and, more important, how to know when you’ve arrived upon such an ambiguous case.
Scalia might reject the notion that these are real problems. As he further writes in A Matter of Interpretation, “often—indeed, I dare say usually—[the Constitution’s meaning] is easy to discern and simple to apply.” But such statements are almost certainly too confident when the Constitution speaks in terms of “liberty,” “due” process, “cruel and unusual” punishment, and so on. Even the First Amendment, in protecting “the freedom of speech,” refers to a presupposed but undefined right. In those cases and other cases, one must ask, can conservatives decide a case by originalism alone? And—Bickel would further ask—should they?