Alexander Bickel
Encyclopedia
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, his writings emphasize judicial restraint
.
, Romania
, who had immigrated to Brooklyn, NY. He graduated from Harvard Law School
summa cum laude. He served as a law clerk
to Justice
Felix Frankfurter
of the Supreme Court of the United States
in the 1952 term, preparing an historical memorandum urging that Brown v. Board of Education
be reargued. Starting in 1956, he taught at Yale Law School
until his death. With Charles Black, he forged what has become one of the world's great centers for the study of constitutional law.
A frequent contributor to Commentary
, New Republic
and the New York Times, Bickel represented the latter in the Pentagon Papers
case (1971). He also defended President Richard Nixon
’s order to dismiss special Watergate
prosecutor Archibald Cox
.
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
and by Justice Samuel Alito
as a major influence and is widely considered one of the most influential constitutional conservative
s 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.
Bickel was a gifted and easily accessible instructor. In 1971, he was elected a Fellow of the American Academy of Arts and Sciences
. He inaugurated the DeVane Lecture series at Yale in 1972 where he taught a large class mostly of Yale undergraduates.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint
Judicial restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
.
Biography
Bickel was born to Jewish parents (Solomon and Yetta Bickel), originally from BucharestBucharest
Bucharest is the capital municipality, cultural, industrial, and financial centre of Romania. It is the largest city in Romania, located in the southeast of the country, at , and lies on the banks of the Dâmbovița River....
, Romania
Romania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
, who had immigrated to Brooklyn, NY. He graduated from Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
summa cum laude. He served as a law clerk
Law clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
to Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in the 1952 term, preparing an historical memorandum urging that Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
be reargued. Starting in 1956, he taught at Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
until his death. With Charles Black, he forged what has become one of the world's great centers for the study of constitutional law.
A frequent contributor to Commentary
Commentary (magazine)
Commentary is a monthly American magazine on politics, Judaism, social and cultural issues. It was founded by the American Jewish Committee in 1945. By 1960 its editor was Norman Podhoretz, a liberal at the time who moved sharply to the right in the 1970s and 1980s becoming a strong voice for the...
, New Republic
The New Republic
The magazine has also published two articles concerning income inequality, largely criticizing conservative economists for their attempts to deny the existence or negative effect increasing income inequality is having on the United States...
and the New York Times, Bickel represented the latter in the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
case (1971). He also defended President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
’s order to dismiss special Watergate
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
prosecutor Archibald Cox
Archibald Cox
Archibald Cox, Jr., was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy. He became known as the first special prosecutor for the Watergate scandal. During his career, he was a pioneering expert on labor law and also an authority on...
.
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 problemsAlternative dispute resolution
Alternative Dispute Resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation...
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
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
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
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
and Baker v. Carr
Baker v. Carr
Baker v. Carr, , was a landmark United States Supreme Court case that retreated from the Court's political question doctrine, deciding that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases...
, did not produce the results the Court had intended. In his book The Least Dangerous Branch, Bickel coined the term countermajoritarian difficulty
Countermajoritarian difficulty
The counter-majoritarian difficulty is a perceived problem with judicial review of legislative laws...
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
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
and Burkean
Edmund Burke
Edmund Burke PC was an Irish statesman, author, orator, political theorist and philosopher who, after moving to England, served for many years in the House of Commons of Great Britain as a member of the Whig party....
thought, citizenship
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
, civil disobedience
Civil disobedience
Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance...
, freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, moral authority and intellectual thought. Bickel has been cited by Chief Justice John Roberts
John Roberts
John Glover Roberts, Jr. is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist...
and by Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
as a major influence and is widely considered one of the most influential constitutional conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
s 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
Snyder v. Phelps
Snyder v. Phelps was a case heard by Supreme Court of the United States on whether the First Amendment protected protests of public protestors at a funeral against tort liability. It involved a claim of intentional infliction of emotional distress made by Albert Snyder, the father of Matthew...
, Brown v. Entertainment Merchants Association, and United States v. Stevens
United States v. Stevens
United States v. Stevens, 559 U.S. ___, 130 S.Ct. 1577 was an April 20, 2010 decision by the Supreme Court of the United States, which ruled that the version of 18 U.S.C...
, 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.
Bickel was a gifted and easily accessible instructor. In 1971, he was elected a Fellow of the American Academy of Arts and Sciences
American Academy of Arts and Sciences
The American Academy of Arts and Sciences is an independent policy research center that conducts multidisciplinary studies of complex and emerging problems. The Academy’s elected members are leaders in the academic disciplines, the arts, business, and public affairs.James Bowdoin, John Adams, and...
. 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).