Floyd Abrams is a partner at Cahill Gordon & Reindel. Yale University Press will publish his next book, which is entitled Friend of the Court: On the Front Lines with the First Amendment (2013).
For me, rereading The Least Dangerous Branch (TLDB) is to return my first days in Yale Law School – and Alex Bickel’s first days as well. We both entered Yale in the fall of 1956, he as a professor, and I as a student. By alphabetical serendipity I was assigned to his seminar on constitutional law. He was a demanding teacher – brutal to a classmate who dared to cite the Declaration of Independence in class, and dismissive of others who substituted what he viewed as pieties for analysis. In class that first term for both of us, he was difficult in a way that made him a spectacular teacher.
Much of what he taught us – we, whose last names fortuitously began with the letters “A” or “B” – is to be found in TLDB. There, as in our class, is his stunningly self-assured dismissal of Marbury v. Madison (1803), no less, because Chief Justice John Marshall had “begged the question-in-chief” of “who should be empowered to decide” if an act of Congress was unconstitutional.
There, as in our class, was his focus on President Lincoln’s disagreement with the Dred Scott Case (1858) and (with southern refusal to abide by Brown v. Board of Education fresh in mind) with Lincoln’s willingness, nonetheless, to obey the ruling even as he sought its reversal. There too, were his unforgettable assaults on the liberal icons of the day – on Justices Hugo Black and William O. Douglas, and on “realist”-oriented academics (most of the faculty, in his view). Prior to Bickel’s arrival at Yale, such criticism was commonplace in Cambridge but hardly in New Haven.
Bickel & Black (Hugo)
Bickel’s treatment of Justice Black has always been of special interest to me. Fresh from a clerkship with Justice Felix Frankfurter (Justice Black’s chief intellectual adversary on the Court), Bickel was no fan of Black and the First Amendment absolutism he advocated. But unlike Bickel’s view of Justice William O. Douglas, whom he despised, Bickel could not and would not simply dismiss Black.
Bickel once wrote of Black that “the observer” (Bickel himself) “not only can bring himself to admire the capacity of so powerful a figure as Justice Black, he cannot bring himself not to.” There is every reason to believe that Bickel meant every word of that. He simply could not accept that Black believed that the First Amendment could be read literally, that “all speech, in all forms and to all purposes, should go unhindered and unregulated by government, whatever the form or purposes of the government action.” Therefore, he concluded, Black made the claims he did about the First Amendment for tactical reasons, because the First Amendment, so viewed, would be a stronger “instrument for the eternal vindication” of freedom. This, Bickel argued, was itself misguided because today’s illusions, by their nature, will not persuade jurists of the future.” Judges,” Bickel concluded, “fear for the survival of passionately held presuppositions of their own and wish to preserve them for the ages in the deathless body of the Constitution. But the Constitution is merely words — deathless words, but words. And the future will not be ruled; it can only possibly be persuaded.”
Of this I will say no more than that no other legal scholar that I have ever read left behind such sublime prose. That the author was born in Rumania and came to the United States at age twelve speaking no English makes Bickel’s verbal felicity all the more remarkable.
None of this, of course, made Bickel any less controversial when he lived, or even today. After the conclusion of the Pentagon Papers Case (1971), in which Bickel served as the chief counsel to the New York Times (I was co-counsel), Justice Black was once heard to observe: “It’s too bad the Times couldn’t find someone who believes in the First Amendment.” As for Justice Douglas, he made a point of ridiculing arguments made by Bickel in oral argument during that case: “That is a very strange argument for the Times to be making.” And he was no less kind in referring to an amici curiae brief Bickel and I had drafted for a group of newspapers led by the Times in Branzburg v. Hayes (1972), a case relating to First Amendment protection for confidential sources. “The New York Times, whose reporting functions are at issue here,” he said, “takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government.” Judicial hardball was played then too.
Illusions and reality
As for the merits of Bickel’s charge that Black’s absolutism was, at its core, an illusion created to assure maximum First Amendment protection, I will not pass judgment on Black’s state of mind any more than I will of that of Bickel himself. For the core of TLDB, after all, could be taken as an effort at creating a different illusion aimed at achieving a different public good. Bickel’s thesis was that by sophisticated uses of doctrines of “not doing” such as standing and ripeness, by avoiding overly broad opinions, and by prudent decision-making as to when and when not to hear particular cases, the Court could better maintain its position and power. The Court, Bickel maintained, should generally “pronounce only those principles which can gain ‘widespread acceptance.’”
There is nothing necessarily improper about any of that, though I do have qualms about such counsel to the extent it may be read to urge that the Court should avoid deciding difficult cases in the service of protecting its own institutional reputation. Bickel, however, certainly was not advocating that the Court announce when it was using such devices for those purposes. There is something of the utilization of illusions in this too.
To reread TLDB is to revisit a different time in American legal history. The ideological warfare between Justices Black and Frankfurter on the Court and between Bickel and some of his academic colleagues has been succeeded by new battles of a sort that would have unthinkable then. It is difficult to believe, for example, that Bickel himself or a single member of the Supreme Court when Bickel began teaching at Yale in 1956 or when he died in 1974 (or for years thereafter) would have viewed the challenge to the constitutionality of the Affordable Care Act (National Federation of Independent Business v. Sebelius) as one that raised a close question. Bickel’s rather breezy summary of American law about the Commerce Clause, circa 1962, reflecting a quarter of a century of legal development (and with a good deal more than another quarter-century of similar holdings to come), seems not so much dated as from a different world. How else could he have written in TLDB that the Court does not, in its Commerce Clause rulings, “generally foreclose the achievement of this or that governmental end”?