Alexander Bickel

Alexander Mordecai Bickel (December 17, 1924 – November 8, 1974) was a law professor and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century,^[1] his writings emphasize judicial restraint.

Biography

Bickel was born in Bucharest, Romania to Jewish parents (Solomon and Yetta Bickel). The family immigrated to New York City in 1939. He graduated Phi Beta Kappa from CCNY in 1947 and summa cum laude from Harvard Law School in 1949.^[2]

Following law school, Bickel was law clerk for U.S. Appellate Judge Calvert Magruder. In 1950, he went to Europe as a law officer of the U.S. State Department, serving in Frankfurt, Germany, and with the European Defense Community Observer Delegation in Paris.^[2]

In 1952, he returned to the U.S., and clerked for Supreme Court Justice Felix Frankfurter in the Court's 1952–53 term. He prepared a historic memorandum for Frankfurter, urging that Brown v. Board of Education be reargued.^[2]

In 1956, he became an instructor at Yale Law School, where he taught until his death. He was named Chancellor Kent Professor of Law and Legal History in 1966, and Sterling Professor of Law in 1974.^[2]

With colleague Charles Black, Bickel established Yale Law as a respected center for the study of constitutional law.

A frequent contributor to Commentary, New Republic and the New York Times, Bickel argued against "prior restraint" of the press by the government as part of the successful representation of the New York Times in the Pentagon Papers case (1971). He also defended President Richard Nixon’s order to dismiss special Watergate prosecutor Archibald Cox.

Contributions

Bickel's most distinctive contribution to constitutional law was to stress what he called "the passive virtues" of judicial decision-making – the refusal to decide cases on substantive grounds if narrower grounds exist to decide the case. Bickel viewed "private ordering" and the voluntary working-out of problems as generally preferable to legalistic solutions.

In his books The Supreme Court and the Idea of Progress and The Morality of Consent, Bickel attacked the Warren Court for what he saw as its misuse of history, shoddy reasoning, and sometimes arbitrary results. Bickel thought that the Warren Court's two most important lines of decision, Brown v. Board of Education and Baker v. Carr, did not produce the results the Court had intended. In his book The Least Dangerous Branch, Bickel coined the term countermajoritarian difficulty to describe his view that judicial review stands in tension with democratic theory.

Bickel envisioned the Supreme Court as playing a statesman-like role in national controversies, engaging in dialogue with the other branches of government. Thus he did not see the Court as a purely passive body, but as one which should lead public opinion, albeit carefully.

Bickel's writings addressed such varied topics as constitutionalism and Burkean thought, citizenship, civil disobedience, freedom of speech, moral authority and intellectual thought. Bickel has been cited by Chief Justice John Roberts^[3] and by Justice Samuel Alito^[4] as a major influence and is widely considered one of the most influential constitutional conservatives of the 20th century.

Relative to Alito's legal thinking and philosophy, one writer in 2011 looked particularly at Alito dissents in Snyder v. Phelps, Brown v. Entertainment Merchants Association, and United States v. Stevens, three First Amendment cases. The writer traced the influence of The Supreme Court and the Idea of Progress, The Morality of Consent and other Bickel writings both as they bore on Alito's developing thinking in college and as he chose to go to Yale (Bickel would die during Alito's third year there); and as the Bickel writings bore on the solitary or minority opinions Alito wrote in the three cases, here departing in cases even from other usually allied conservative members of the Court.^[4]

Bickel was a gifted and easily accessible instructor. In 1971, he was elected a Fellow of the American Academy of Arts and Sciences.^[5] He inaugurated the DeVane Lecture series at Yale in 1972 where he taught a large class mostly of Yale undergraduates.

Selected bibliography

• The Least Dangerous Branch (Bobbs-Merrill, 1962)
• Politics and the Warren Court (Harper & Row, 1965)
• The Supreme Court and the Idea of Progress (Harper & Row, 1970)
• The Morality of Consent (Yale University Press, 1975)
• History of the Supreme Court of the United States: The Judiciary and Responsible Government: 1910-1921 (vol. IX, Macmillan, 1984).
• SCOTUSblog Online Symposium on The Least Dangerous Branch (August 2012)

References