Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. He is the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.
What enduring value does Alexander Bickel’s now-classic The Least Dangerous Branch have today? In what ways does it or should it speak to us? One is tempted to answer: Virtually not at all. The Least Dangerous Branch was a profoundly conflicted book at the time it was written, and by the end of his career Bickel himself had disowned its core argument. That answer would be a touch too hasty, however. There is one part of Bickel’s overarching thesis that gets little attention today, yet holds the key to “understanding” the Supreme Court – or at least beginning to understand it.
The importance of nuance
It’s a bit shocking how poorly understood The Least Dangerous Branch is, but perhaps that is the fate of any classic work, which inevitably reduces to a bumper sticker, or a slogan, losing the nuance that defined it. When people talk and write about The Least Dangerous Branch, they tend to focus on Bickel’s assertion that the Supreme Court is a “deviant” institution in American government because of its undemocratic “counter-majoritarian” nature. Or, they recall Bickel’s extended thesis about the “passive virtues,” the importance of the Justices ducking certain issues. The first was nothing but a set-up for what Bickel had to say; he barely believed it himself. And the second was important, but hardly the main event.
Alexander Bickel was a profoundly complicated and nuanced man. He was wicked smart, and carried himself with a certain elegance that was almost otherworldly. So, too, was the case with his writing. His pen was sharp, but it also was enigmatic. It’s not always clear precisely what Bickel was saying, and he was not a man to be troubled by his own inconsistency. Most important, over the length of his all-too-short career, Bickel changed his views profoundly.
It’s impossible to understand The Least Dangerous Branch without understanding its milieu. Bickel wrote the book relatively early in his career, and smack in the middle of the Warren Court. Bickel had clerked for Justice Felix Frankfurter, and had been deeply influenced by him. He echoed Frankfurter’s democratic commitments, which led the Justice to disdain judicial intermeddling. (Except when Frankfurter wanted to meddle; he, too, felt little obligation to consistency.) At the same time, Bickel felt all the hope and promise of the Warren Court, especially that reflected in Brown v. Board of Education (1954), in which he played some role as a law clerk. And so there was a tension in Alex Bickel: a commitment to a hands-off Court deferential to democracy, set against the promise of an activist one.
Although The Least Dangerous Branch reflects the tension Bickel felt between judicial activism and judicial abstention, in the book Bickel comes down squarely on behalf of the good the Supreme Court can do. That whole spiel about the countermajoritarian difficulty was a jazzy way to set the stage. But it was nothing more than stage-setting. No democratic egalitarian was Bickel. He was an elitist, contemptuous of the Warren Court’s later “one person, one vote” rule in the Reapportionment Cases.
Bickel’s central point in The Least Dangerous Branch – which everyone seems to forget – is that the Supreme Court should serve as a forum for “principle.” The whole countermajoritarian set-up was only to ask the question Bickel really wanted to answer: What special role could or did the Supreme Court play in American society? And Bickel’s answer was that the Court was a “highly effective educational institution” that could “appeal to men’s better natures” and while seeking to put its finger on “the enduring values of a society.” The “passive virtues” part of his thesis provided for the Court to avoid speaking when doing so would be premature, either because the future was not yet clear, or because society was not ready to hear the truth.
Of course, if you stop and think about it, this whole “forum of principle” argument didn’t answer the countermajoritarian objection. Sure, the Justices were (somewhat) insulated, and sure, why not empower them to identify deeper principles and problems that needed to be addressed in society? (This, after all, was the midpoint of the Warren Court.) But if the Justices truly were unaccountable, and if this was damning in a democratic society, then weren’t they the last people you’d countenance enforcing our “fundamental values?”
The loss of “principle”
Not that it mattered: By 1970 – a scant eight years after The Least Dangerous Branch, and only four before Bickel’s death – the bloom was already off the whole “forum of principle” rose. In that year, Bickel published The Supreme Court and the Idea of Progress, a scathing critique of the Warren Court, and of much else the Justices had tried to accomplish. “Nothing is more evident in the Supreme Court’s past than that most of its prior major enterprises . . . have not worked out.” Front and center in Bickel’s critique was Brown v. Board of Education, which he felt was headed for disaster or desuetude, and the Reapportionment Cases, with which he had never agreed. Principle, for Bickel, was now a handicap: “The judicial process is too principle-prone and principle-bound . . . . It is also too remote from conditions, and deals, case by case, with too narrow a slice of reality.” The book was equal parts contempt and disappointment. “The future may yet belong to the Warren Court,” he conceded. But he doubted it.
To state the obvious, if the “principle” bloom was off the Supreme Court rose in 1970, it has pretty much stayed off. One would be hard pressed to find someone today who thinks the Justices are solons of society, Platonic Guardians of any sort who have their fingers on some deeper truth that none of us knows. We are pretty much clear that they are nine human beings grappling case by case with a lot of hard issues, doing the best they can (or not), and that by dint of history – it’s just the way we do things here – they get the last word on some set of issues. Sometimes.
The connective theme
Here, though, is where Bickel’s real contribution comes in, the one that deserves a lot more of our attention today. Bickel worked across the campus from the great political scientist and student of the judiciary Robert Dahl, and Bickel’s work is subtle and thoughtful in its integration of such political science. Bickel understood how things worked, more so than how they should work. He had lots of normative views, some of which turned out fine in a small-bore way, but when it came to over-arching comprehension, Bickel was a lot better at “how” and “why” than “should.”
Bickel saw the Court as in “dialogue” with the American public, with both of them tacking to and fro as they tried to reconcile their views. This is a connective theme in Bickel’s work. What Bickel understood absolutely well was what he described as the “Lincolnian tension” between principle and pragmatic politics – that principles were great, but they had to bend to the force of real world realities. So, Bickel saw the Court as running (in Eugene Rostow’s words) a “vital national seminar,” but he also understood that that “colloquy” went both ways, and that the American people, disagreeing, might balk or speak back. In The Supreme Court and the Idea of Progress (1970), Bickel’s views on this subject were on full display. Listen:
The true secret of the Court’s survival is not, certainly, that in the universe of change it has been possessed of more permanent truth than other institutions, but rather that its authority, although asserted in absolute terms, is in practice limited and ambivalent, and with respect to any given enterprise or field of policy, temporary. In this accommodation, the Court endures. But only in this accommodation. For, by right, the idea of progress is common property.
What Bickel is saying, in case he is a touch too enigmatic, is that ultimately the people control the Supreme Court and not the other way around. The Justices can blather on all they want, but if the people profoundly disagree, they will do something about it, whether it is ignoring the Court or challenging it. Bickel felt this so acutely and comprehended it so well that one wonders from where – besides Felix Frankfurter – all that counter-majoritarian stuff about unaccountability came. Bickel knew that making fundamental law was a two-way street. (And should be.)
If anything, when it came to making fundamental law, Bickel may have had his causal arrow somewhat reversed. As Bickel saw things, the Court threw out trial balloons, its best view of enduring values, and then they endured or not in the national seminar. But in many ways the Justices may be more receptacles than oracles. One view of fundamental values is that they exist in the ether waiting only to be discovered by the wise among us. Another is that fundamental values rise from the bottom up; that what makes them fundamental is their very universal acceptance. The two views can be reconciled, of course. The people may be just as good as the Justices at plucking values from the ether.
Understanding the Court . . . as an institution
What we should be doing to pay homage to Bickel is to try to understand the Court as an institution rather than just fantasizing about it. We won’t really understand the Court unless we study it in the same hard-boiled way we study institutions like the presidency, the Congress, and administrative government. The good news is that the last few years have seen increased collaboration between lawyers and political scientists working to really get how the Court as an institution operates.
Speaking realistically, it’s difficult to understand the Court as anything but the aggregation of nine independent ideologies, working together to achieve agreement on tricky issues. “Ideology” is not intended to be a dirty word here. On a Court that sits at the apex of a giant judicial system, the legal questions necessarily will be open and unresolved, and one’s subtle biases – believing in federalism, favoring administrative government, trending libertarian – inevitably influence the way those open questions get resolved.
The interesting focus, for the most part, will be on the collaborative. Nine views must be merged. They must agree, or five must, to make law. (The difficulty in doing so is what has held the conservative wing of the Court back more than anything in recent years.) They must make law that is workable in the lower courts, and must interact with and try to control those lower courts. They must recognize that, as Bickel said, their task is often “interstitial” and that absent agreement in the body politic, the Court’s judgments are likely to run into trouble. That if a lot of those judgments are controversial, the Court itself will run into trouble – witness the demise of the Warren Court.
Even Bickel’s countermajoritarian difficulty is but an empirical proposition that cries out for analysis and testing. The Court may not be countermajoritarian in the way Bickel envisioned, but some of its decisions surely are. Bickel’s focus was on why some decisions failed; he cared less about what caused some to endure. Here, practical politics may matter. Does a Court decision require legislative action, or just strike existing enactments? The latter is more likely to stick. Does a Court decision split a governing majority, making it difficult to strike back at the Court? These are among the variables that any attempt to understand the Court, rather than simply rant about it, must pursue. And understanding is the course we should pursue (though ranting, as Bickel’s work made so clear, has its important place as well.)
One feels compelled to connect all this to the Roberts Court, to the enduring controversy surrounding Citizens United (2010), the enigmatic and surprising result that was National Federation of Independent Businesses v. Sebelius (2012), and the non-answer of the GPS monitoring decision (United States v. Jones) (2012). About stealth overruling, accusations of a pro-business bent, discord on the Court, etcetera, etcetera.
But then, perhaps one already has.