Least Dangerous Branch: The Supreme Court at the Bar of Politics

I recently re-read Alexander Bickel's The Least Dangerous Branch. It is frequently referenced but actually read much less so. Bickel coined the phrase "the countermajoritarian difficulty" in this and other works. The phrase is used incessantly even today.

This will be the first in a series of posts discussing the book, its contemporaries, and its influence. I was truly amazed, reading the book for the first time since first year constitutional law, at how much of today's constitutional dialogue hearkens back to Bickel, and even uses his language in many instances. Bickel first published the book in 1962.

I am thoroughly convinced that the late 1950s and 1960s marked the most dramatic period for (and shift in) American jurisprudence. This was the era apologia for the New Deal and the Court that remained afterwards, still found in scholarship today. It was also a time of great institutional change in the legal profession and education, enabling this movement to instantiate itself in students (especially at Yale, Bickel’s home) that would become the next generation of influential scholars-- those still around today.

I don't mean to deify Bickel, or to attack him. But I think this book can reasonably be seen (and is by many of all political stripes) as a bulwark of modern Supreme Court thought. Bickel most definitely raises a number of original and thoughtful points. My thought, however, is that too many people actually did deify him and were too quick to embrace what he said. Some his major ideas have been critically discussed at length in the literature. But what worries me is the embrace of what Bickel and his contemporaries subtly interjected throughout their work: revisionist history and hyperbole that disparaged and marginalized anyone that did not worship at the altar of the New Deal, including those that were generally approving, yet not so smitten.

But first a few book review-type comments. It's dreadfully boring. I hesitate to go so far as to say it's poorly written, but it drags on forever in sometimes terribly awkward prose. The book has been so profoundly influential (you see countless cites in many con law casebooks and articles even today) and thus should be read by anybody that wants to really understand the origins of modern theories of the Supreme Court, but I'm not sure how it ever got to be so popular being as dull as it is.

Notwithstanding its inability to draw in the reader, though, the book is pretty well organized, starting with the general, common justification for the establishment of judicial review, moving on to specific aspects of the Court's power and lack thereof, ending up with a detailed discussion in the context of the School Segregation Cases (Brown v. Board of Education and its companions). These cases are also referred to, in much less detail, throughout the book.

The next post will discuss Bickel's depiction of the New Deal Court.