Online Alexander Bickel symposium: Foreword — looking back while moving forward
on Aug 13, 2012 at 2:44 pm
Ronald K.L. Collins is the Harold S. Shefelman Scholar at the University of Washington School of Law. His next book, Nuanced Absolutism: Floyd Abrams and the First Amendment, comes out in January.
Posterity is the judge. — Alexander Bickel, The New Republic, July 12, 1969
His name was Alexander Mordecai Bickel (1924-1974). He was one of the great constitutional scholars of his day and the author of The Least Dangerous Branch: The Supreme Court at the Bar of Politics (TLDB), which was published fifty years ago this year. That anniversary is the occasion for this online symposium.
Bickel immigrated to the United States from Bucharest, Romania, and then went to the City College of New York (Phi Beta Kappa, 1947), and then onto Harvard Law School, where he was a member of the Harvard Law Review and graduated summa cum laude in 1949. He was a law clerk to Judge Calvert Magruder of the First Circuit (a former Louis Brandeis clerk) and then worked as a clerk for Justice Felix Frankfurter. Young Bickel served when Brown v. Board of Education was before the Court. During that time he authored an important memorandum for Justice Frankfurter – a memo that helped shape the outcome in Brown. In that memo, Bickel wrote: “The legislative history of the [Fourteenth] Amendment is, in a word, inconclusive.” That was the point from which Chief Justice Earl Warren catapulted the Brown opinion out of the past and into the future.
Portrait of a scholar
Our problem has been, and is most acutely now, the tyrannical tendency of ideas and the suicidal emptiness of politics without ideas.
— Alexander Bickel, The Morality of Consent (1975)
Bickel came to Yale Law School in 1956 to teach constitutional law. In 1966, he was named Chancellor Kent Professor of Law and Legal History; in 1974, he was named the Sterling Professor of Law. He held joint appointments in the Law School and in the History Department.
Bickel published six books in his lifetime and two posthumously (one of which was completed by Benno Schmidt). He authored several important law review articles, one of the most noted of which was his 1961 Foreword to the Harvard Law Review; the piece was titled “The Passive Virtues.” He also published numerous essays on constitutional law. They typically appeared in The New Republic and in Commentary. (A full list of his writings is available here.) Those magazine articles, perhaps more so than his books, reveal Bickel’s masterful writing skills – he could turn a phrase like Muhammad Ali could land a punch, skillfully and powerfully.
Though they were not cut from the same conceptual cloth, Alex Bickel taught a few classes with Robert Bork, who eulogized Bickel at Yale’s memorial service and later wrote the entry on Bickel for The Yale Biographical Dictionary of American Law (2009). To honor its great scholar, in 1979 Yale Law School established a chair in public law named after Bickel. Professor Robert A. Burt today occupies that chair. True to Bickel’s memory, a portrait of him still hangs in room 127 of the Law School, the room in which Bickel once taught.
In 2005, a collection of essays was published to discuss, yet again, the thesis of Bickel’s TLDG. The book was titled: The Judiciary and American Democracy: Alexander Bickel, The Countermajoritarian Difficulty and Contemporary Constitutional Theory. More recently, Commentary published an informative essay by Adam J. White on Bickel and his constitutional jurisprudence.
In his time, as Professor Burt has noted, Bickel’s “distinctive vision framed the terms of debate in constitutional jurisprudence in the 1960’s and beyond.” Indeed it had. As the late Charles L. Black pointed out in 1974: “No one in our times, or perhaps any times, so deeply, so broadly, so imaginatively explored the institutional place of the courts in shaping the world – and, even more widely than that, the place of constitutional law in political life.”
According to Jeffrey Toobin as he tells it in The Nine, in the early 1980s, when conservatives were thinking of a name for what later became The Federalist Society, Steven Calabresi and others considered the idea of calling the group “The Alexander Bickel Society.” Had it come to pass, Bickel’s silhouette rather than James Madison’s might have been the organization’s logo, and TLDB might have been its foundational book instead of the Federalist Papers.
And how is Bickel seen today? Judge Richard Posner took up that question in a 2012 California Law Review article he wrote on judicial restraint. Here, in part, is what he said: “Although Alexander Bickel considered himself a Frankfurter avatar and made frequent approving references to Thayer, his version of judicial self-restraint was really Brandeis’s. Bickel had a political program – the kind of mild liberalism one associates with the current liberal members of the Supreme Court – that he thought the Court could put over on society by clever deployment of tactical devices, some original with him.” And then he added: “For Bickel and his judicial disciple, Guido Calabresi, the Supreme Court is always in a tense political competition with the elected branches of government. This is the view of political scientists as well, and has merit.”
The Janus faces of justice
We reason from the aspirations of previous generations, not from their frailties.
— Alexander Bickel, The New Republic, July 18, 1960
In TLDB “Bickel identified, and attempted to resolve, the central problem of constitutional law: Our political ethos is majoritarian, but the Supreme Court, with the power to strike down laws democratically enacted, is counter-majoritarian.” That, at least, is how Judge Bork cast the work.
There was a curious quality about TLDB: It was at one and the same time a book about judicial restraint and its opposite. On the one hand, TLDB was “first and foremost a defense of Brown v Board of Education,” as Adam White has correctly observed. For Raoul Berger, as he argued in his Government by Judiciary (1977), such a defense was untenable. Thus, while Bickel’s “pro-Brown” pragmatist way of thinking won him some endorsements in the liberal camp of constitutional law, it cost him some credibility in the conservative camp (though only a rare few in that camp are willing to denounce Brown’s historicism).
On the other hand, TLDB and Bickel’s other writings, such as The Supreme Court and the Idea of Progress (1970), were a repudiation of some of the decision-making that came to be the hallmark of the Warren Court. The “counter-majoritarian difficulty,” as Bickel tagged it, was the problem created by excessive judicial intervention into the domain of the legislative branch – a difficulty that undermined the will of “the People.”
As Mark DeWolfe Howe, the great Holmes biographer, noted in a 1964 book review essay: “Professor Bickel is far too wily a lawyer and subtle a scholar to let himself be ticketed ‘activist’ or labeled ‘neutralist.’ He rejects the views of [Learned] Hand and [Herbert] Wechsler with respect to the School Segregation Cases and to that extent sides with the more energetic of the angels. His caustic reflections upon the restful absolutes of Mr. Justice Black and Edmond Cahn may seem, however, to make him an ally of powers often considered by angels to be those of darkness. He follows, in other words, an ingenious course of his own.”
For Bickel, if the Court was to maintain its legitimacy as the defender of constitutional principles, it must restrain itself and avoid, whenever reasonably possible, clashes with the other two branches of government and with the states. In other words, the virtues to be exercised (most of the time) by the Justices are the “passive virtues.”
Perhaps not surprisingly, then, toward the end of TLDB Bickel declared: “I have adverted repeatedly, at about every decisive point in the argument of this book, to the Segregation Cases, for they at once epitomize and challenge all that I have tried to say about the role of the Supreme Court in American government.”
Looking back, looking forward
No only has The Least Dangerous Branch set today’s agenda for scholarship in constitutional law, perhaps it will set tomorrow’s as well.
— Harry Wellington (1986)
Bickel’s admirers include Justice Samuel Alito, who in 1985 wrote: “I discovered the writings of Alexander Bickel advocating judicial restraint, and it was largely for this reason that I decided to go to Yale Law School” (quoted in Adam J. White, “The Burkean Justice,” The Weekly Standard, July 18, 2011). Floyd Abrams, the noted First Amendment lawyer, was one of Bickel’s Yale students. They worked together, with Bickel taking the lead, in making the case for the First Amendment in New York Times v. United States (1971) and in Branzburg v. Hayes (1972). (Mr. Abrams’s next book is dedicated to two of his former teachers, one of whom was Alex Bickel.)
In a 1975 book review in The New York Times of The Morality of Consent (a posthumously published work), the liberal Alan Dershowitz solicitously referred to Alex Bickel as an “intellectual provocateur.” The year before, the conservative syndicated columnist George Will approvingly labeled Bickel as “the keenest public philosopher of our time.”
Both in his day and in our own, Professor Bickel’s thoughts concerning the proper role of the judiciary conjure up approval and disapproval. And some, like Professor Anthony T. Kronman, writing in a 1985 Yale Law Journal article on Bickel, have attempted to reconcile Bickel’s more conservative prudence with his more pragmatic principles of judging.
Whatever scholars make of it, in the past ten years they have alluded to TLDB in almost 1400 articles. The book is a referent point, a benchmark by which to judge the legitimacy of judicial review. At one point or another, as the contributions to this Symposium reveal, Bickel’s thought is often endorsed and sometimes rejected. But, in a sense, this says something significant about the author of TLDB and his view of constitutional government in America. And that something is this: One mark of a truly great work is its ability to make us think . . . even when we disagree with what a sensible author may say. Unlike much of what today masquerades as constitutional scholarship couched in vacant vernacular, Professor Bickel’s clearly argued and plainly stated book prompts us to think anew about matters we might have thought settled.
Thinking, if taken seriously, invites moderation – the kind of moderation that derives from conceding the possibility that one may be wrong. In that regard, it is well to reflect upon something Bickel said in an October 17, 1970 New Republic article entitled “The Revolution of Unreason.” His message is particularly poignant given the climate of the constitutional politics of our time. Mincing no words, Bickel admonished: “If most of the things that politics is about are not seen as existing somewhere in a middle distance, well this side of moral imperatives, if they are not seen as subject on both sides of a division of opinion to fallible human choice, then the only thing left to a society is to succumb to or be seized by a dictatorship of the self- righteous.”
How open-minded are any of us when it comes to our Constitution? Dare we be fair brokers? Dare we restrain our passions? Dare we tame our prejudices in the name of law, properly understood? This symposium, and the book that gave rise to it, bid us to consider such questions with a candor born out of humility and a courage born out of sobriety.