Online Alexander Bickel symposium: Bickel’s principled prudence

Adam J. White is a lawyer at Boyden Gray & Associates in Washington, D.C.  He often writes on legal and regulatory issues for The Weekly Standard, The Wall Street Journal, and other publications.  Last year, his essay on Justice Alito and Alexander Bickel was selected among The Green Bag’s annual “Exemplary Legal Writing” honorees; this year, Commentary published his longer reflections on Bickel’s legacy.

In writing The Least Dangerous Branch, Alexander Bickel famously drew the title from Alexander Hamilton’s assurance, in Federalist 78, that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”  In hindsight, perhaps Bickel should have drawn the title instead from the lines that followed – namely, Hamilton’s suggestion that the judiciary “may truly be said to have neither force nor will, but merely judgment.”  In The Least Dangerous Branch, and the myriad articles and books that followed, Bickel confronted the challenge that Hamilton’s facile phrase sidestepped: In deciding cases and controversies, how shall the Justices go about exercising “merely judgment?”

Bickel’s answer ingeniously married conservative and progressive instincts.  In doing so, he forfeited the possibility of securing long-term adherents among rival ideological camps.  But by attempting to eschew ideology and seeking answers in prudence and national experience, Bickel followed in the footsteps of two other great progressive conservatives (or, conservative progressives), James Madison and Edmund Burke. He offered a vision of the Supreme Court that vindicates both America’s appreciation of tradition and its aspiration toward ideals.  And as valuable as Bickel’s analysis was in his own time, it is no less indispensable today.

Justifying (but limiting) judicial review

That we think of Bickel today as a proponent of judicial restraint is somewhat ironic, given that The Least Dangerous Branch was a defense of judicial action – specifically, the Court’s then-controversial decision to end racial segregation in Brown v. Board of Education (1954).  Bickel’s task in The Least Dangerous Branch was to navigate the progressives’ transition from a decades-long era of reflexive judicial restraint to one of judicial engagement, rebutting the criticisms of Brown levied by Learned Hand, Herbert Wechsler, and other proponents of judicial restraint.

He began with first principles, attempting to construct a general justification for judicial review.  First, he recognized not just the “counter-majoritarian difficulty” inherent in enforcing constitutional limits against the will of immediate popular majorities, but also the risk that if the Court assumes sole responsibility for enforcing those limits then “judicial review may, in a larger sense, have a tendency over time to seriously weaken the democratic process.”

Second, Bickel contrasted “expediency” with “principle”: the President and Congress, subject always to immediate electoral and political pressures, “will ordinarily prefer to act on expediency rather than take the long view.” The Supreme Court’s nine Justices, by contrast, “have, or should have, the leisure, the training, and the insulation,” and the “habit of mind,” to achieve decisions based on deeper principle – and to test abstractions against “the flesh and blood of an actual case.” If we were destined 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,” then it would have to be the Supreme Court.

Finally, Bickel recognized that the Court serves a “legitimating” function, not merely checking the other branches when they exceed their constitutional limits, but also validating the branches’ legitimate efforts.  In that latter respect, the Court “has the subtler power of adding a certain impetus to measures that the majority enacts rather tentatively.”

Dissatisfied with the forms of judicial restraint preached by Hand, Wechsler, and Professor James Bradley Thayer, as well as Justice Hugo Black’s own form of textualism, Bickel’s prescription focused on the “Lincolnian tension” that gives rise to deeper constitutional principles.  Quoting Harry Jaffa’s Crisis of the House Divided (1959), Bickel stressed that constitutional principles are “evolved ‘from within the democratic ethos as perfections of that ethos.’”  That is, the Court should look to the long arc of national experience to deduce the principles that could be enforced against present majorities in the Supreme Court’s work of judicial review.  And where the matter was not yet ripe for Supreme Court intervention – where national experience provided insufficient guidance, and where there remained an opportunity for further experience in the states, or in the lower courts, the Court could stay its hand.  “The most important thing we do,” Bickel quoted Justice Brandeis, “is not doing.”

As I mentioned above, Bickel’s analysis is both Madisonian and Burkean.  It is Madisonian in distinguishing principle from expediency, an echo of Madison’s exhortation, in Federalist 49, that “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,” if not Madison’s entire project of tempering and channeling the passions through the federal government’s countervailing institutions. And it is Burkean in attempting to glean constitutional principle not from abstract theory, but rather from national experience.

Burkean strains

The Least Dangerous Branch’s Burkean strains are particularly significant.  Bickel himself did not expressly invoke Burke in that book, or in the books that followed; only very late in his life – a 1973 essay in The New Republic, incorporated into his posthumous The Morality of Consent – did Bickel mention Burke by name.  (And then he did so with gusto, embracing a “tradition [that] can, for lack of a better term, be called Whig in the English eighteenth-century sense.  It is usually called conservative, and I would associate it chiefly with Edmund Burke.  This is my own model.”)

Yet Burkean themes were the heart of The Least Dangerous Branch’s notion of principle.  John Hart Ely, Robert Bork, and others later suggested that Bickel’s “Burkean ending” (as Ely put it in Democracy and Distrust) marked a change in the substance of Bickel’s thought, a belated “pastiche of things remembered, with particular stress this time on one that hadn’t much attracted young Alex Bickel: tradition.”

With all due respect to the late Professor Ely, it is simply impossible to read The Least Dangerous Branch without recognizing Bickel’s own recognition of the importance of tradition and experience – such as in Bickel’s discussion of the duty of Justices to “immerse themselves in the tradition of our society and of kindred societies that have gone before[.]”  And those Burkean currents were no less evident in his subsequent books, Politics and the Warren Court (1965) and The Supreme Court and the Idea of Progress (1970).

In fairness to Ely and others, The Least Dangerous Branch’s Burkean foundations might have been overshadowed by Bickel’s other colorful turns of phrase, such as when he declared the Court to be “pronouncer and guardian” of national “values,” an institution “charged with the evolution and application of society’s fundamental principles,” “inevitably teachers in a vital national seminar.”

No doubt, such elitist formulations resonated among the young generation of progressives eager to strike a blow against racist southern majorities.  But Bickel made clear elsewhere in the very same book that while the Court was “a leader of opinion, not a mere register of it,” the Court must take care to not “merely impose its own” opinion on the public; to vindicate only those principles rooted in tradition and experience; and to “declare as law only such principles that will – in time, but in a rather immediate foreseeable future – gain general assent.”

Prudence & paradox

This last point, on the importance of practical prudence, would become a major focus of Bickel’s eventual blistering criticism of the Warren Court.  The “Court must not overestimate the possibilities of law as a method of ordering society and containing social action,” he warned in Politics and the Warren Court.  “And society cannot safely forget the limits of effective legal action, and attempt to surrender to the Court the necessary work of politics.”  While Brown sought to vindicate a principle that was both sufficiently grounded in experience yet respected the limits of practical reality, the Warren Court’s pursued radical aims – an “Egalitarian Society” or “Heavenly City” – that were simply unattainable.

Of course, by calling on the Court to pursue the twin aims of fundamental principle and practical attainability, Bickel’s framework creates a bit of a paradox, one for which Judge Skelly Wright (or, more accurately, Judge Wright and Professor Richard D. Parker) skewered Bickel in a 1971 Harvard Law Review commentary on The Supreme Court and the Idea of Progress.  “Bickel’s chapter dissecting a selection of the Warren Court’s decisions  . . . takes a damned-if-you-do, damned-if-you-don’t approach,” Wright wrote.  “When the Court attempts to limit its holdings narrowly, the critics charge that the decisions are not sufficiently general and principled. . . .  But when the Court does base its decisions on general principles, the critics” seize upon the practical problems that such a rule would create, Wright continued.  Then again, Bickel himself might reply that the contradictions inherent in his framework simply reflect his attempt to balance the contradictions inherent in constitutional republican government – the “counter-majoritarian difficulty,” the “Lincolnian tension,” and so on.  It is, in the end, a pragmatic balance, for better and for worse.

Bickel’s prudence today

Today, fifty years after it was first published, The Least Dangerous Branch continues to be a touchstone of modern constitutional debate; a quick search of Westlaw indicates that it was cited in nearly 450 law review articles in the last three years.  Yet Bickel’s stock has fallen far since his death in 1974. This is a pity, because Bickel’s prudence is needed today more than ever.

We can identify no shortage of particular contexts in which Bickel’s caution against Supreme Court intervention might be relevant: in liberals’ effort to constitutionalize the right to same-sex marriage, conservatives would argue; or, in conservatives’ effort to end race-based affirmative action, liberals might reply.

But looking beyond specific legal disputes, Bickel’s prudence is perhaps most urgently relevant to the Right, at a uniquely momentous juncture in conservative legal thought.  Two decades after Originalism rose to prominence, an alternative jurisprudence (or at least a variation) offers to take conservatives in a substantially different direction.  Whether rooted in libertarianism or natural law, there appears to be an increasing appetite among conservatives, especially among its “Tea Party” ranks, to urge the Court to much more aggressively strike down laws at the state and federal level.

Intellectually, we see this in, e.g., the writings of legal philosopher Hadley Arkes, whose recent “Natural Law Manifesto” in the Claremont Review of Books criticized conservatives who “take the antics of the liberal judges as an excuse to abandon the natural law, and the moral high ground of the law, rather than claiming the high ground for itself.”

Politically, we see this in, e.g., much of the Tea Party movement, including candidates such as Michele Bachmann, who argued that the Constitution prohibited health-insurance mandates imposed by states no less than by the federal government.

If these examples and others embody a real trend, then we are experiencing a re-enactment of the very moment, fifty years ago, when the Left went through a similar transition from a jurisprudence of judicial restraint to one of judicial activism.  In The Least Dangerous Branch and in subsequent writings, Bickel warned progressives not to race ahead too quickly; not to press the Court to recognize rights divorced from principles rooted in national experience; and not to forget that the Court undertakes its work in the context of a broader set of governmental and societal institutions.  Progressives and conservatives alike ignore those lessons at their own peril.

In 1975, a year after Bickel’s death, his friend Robert Bork reviewed Bickel’s The Morality of Consent in a Supreme Court Review essay.  In it, Bork concluded that “it is hard to believe that this work will not prove seminal, that the tradition will not be elaborated by others.” Better late than never.