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.

From The Least Dangerous Branch:

“Mr. Roosevelt, as is well known, failed to pack the Court.… But time unpacked it, and… [i]n a few years they cleaned up after the old Court. A great many measures which almost everyone would concede today, denoted social and economic progress had been laid beside the Due Process and Equal Protection Clauses, or beside the Commerce Clause, and had been struck down because they were found to be round where they should have been square.” (p. 90)

Published in 1962, I’m quite skeptical that “almost everyone” actually felt the way Bickel did at the time. Even Lochner was less than 60 years old. Pro-regulatory chestnuts like Nebbia and West Coast Hotel were a mere 28 and 25 years old, respectively. That’s less than Roe v. Wade’s current 32-year age, but Roe is still commonly discussed and fairly contentious.

Bickel can be forgiven his hyperbolic “almost everyone” as literary technique, but my belief is that plenty of people actually did believe this was true, simply because Bickel (and others) said it. Learning from Bickel et al, they took these cases to be unassailable. This happens today with Roe, but if it’s truly an unassailable outcome, why do so many fear it will be overturned? What I’m suggesting then, is that Bickel and others, in the late 50s and 60s, turned anti-Lochnerism and regulation, generally, into the jurisprudential equivalent of Roe today.

Next in the series: more on the connection between Roe and Lochner.

I last discussed Lochner (in 1962, when The Least Dangerous Branch first came out) as being what I dubbed “anti-Lochnerism” as being “the jurisprudential equivalent of Roe today.” As is often discussed, Lochner-type substantive due process is essentially what became the reasoning for Roe. Of course, the left is generally in favor of Roe, but dismissive of Lochner. Roe-Lochner reconciliation, then, has become a sort of cabin industry unto itself, even in the new book What Roe v. Wade Should Have Said (edited by Jack Balkin).

But by saying anti-Lochnerism was “the jurisprudential equivalent of Roe today,” I actually mean to say something somewhat different. I mean that anti-Lochnerism should be considered, at least at that time, as (at best) only as settled as Roe is today. One can disagree over the merits or lack thereof in Roe, but surely nobody can seriously maintain that the doctrine is not in question. Why would it become a touchstone for Supreme Court nominees if it weren’t foreseeable that the doctrine could be overturned in a not so distant Court term?

Of course, while the hyperbole advanced by Roe supporters can be likened to the anti-Lochnerists, there is some distinction yet. To no longer recognize a right to abortion under the Constitution would actually require Supreme Court invalidation of current precedent. Lochner, however, was never expressly overruled, and its essence – substantive due process – has retained at least some vitality (e.g. in Roe).

As then Justice Rehnquist said in his Roe dissent:

Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

Be it abortion or substantive due process, generally, Rehnquist offered wise counsel for yesterday and today alike: the very existence of debate is strong, if not conclusive, evidence of the non-universality of the principle. But Bickel, and especially those that followed him, seem not to have acknowledged this at all. (Bickel was, of course, writing before Roe, but the logic was true even before Rehnquist's putting into writing.)