The Supreme Court and the Idea of Progress

by Alexander M. Bickel

Timeless questions about the role of the Supreme Court in the American political and legal system are raised in the late Alexander Bickel’s characteristically astute analysis of the work of the Warren Court. He takes issue with the Court’s view that its role should be to move the American polity in the direction of perfect equality and expresses his preference for "a more faithful adherence to the method of analytical reason, and a less confident reliance on the intuitive capacity to identify the course of progress."

First published in 1970, this book made news with its prediction that the Court’s best-known decision, in Brown v. Board of Education, might be headed for "irrelevance." Bickel charged the Court, particularly in its segregation and reapportionment cases, with being irrational, inconsistent, and even incoherent and argued that its decisions would lead to unwise centralization of government. He explored the limitations on the role of the court in stimulating social progress and concluded that the Warren Court had intervened in matters of social policy where the political process, not judicial action, should apply.

"Process is what especially concerned him – the relationship between the legal and the political process in a country where the two are uniquely intermixed. If he criticized something done by the courts for the stated purpose of speeding school desegregation, that did not mean that he favored state-imposed racial discrimination; in fact he abhorred it. He was concerned, rather, about trying to solve complicated problems by legal formulas instead of leaving them to the give-and-take of the political process."
-- Anthony Lewis

Genres: Law

224 pages, Paperback

First published January 1, 1978

About the author

A legal scholar and expert on the United States Constitution., Alexander Mordecai Bickel was Sterling Professor of Law at Yale Law School, where he taught from 1956 until his death. Bickel graduated Phi Beta Kappa from City College of New York in 1947 and summa cum laude from Harvard Law School in 1949. He was a law clerk for federal Judge Calvert Magruder of the United States Court of Appeals for the First Circuit, and clerked for Justice Felix Frankfurter of the Supreme Court in 1952 and 1953.

Reviews

[Jordan · Rating 4 out of 5]

Though cumbersome at times - I found myself reading and re-reading paragraphs, not because the thought was poorly developed, but because the sentence structure is complex, some blend between the colloquialism of a lecture (where these chapters were first delivered) and a demanding, self-referential treatise - this book repays careful attention. And if you enjoyed this first sentence, this is definitely a work for you.

Bickel provides a cogent analysis of the Warren Court's desegregation and reapportionment jurisprudence to critique the Court's understanding of itself and American democracy, but his argument frequently moves beyond simple jurisprudence to draw on Tocqueville, the Federalist, Mill, and democratic theory at large (predominately Dahl), and at once raises the brow of the lawyer and recalls the philosopher from the clouds to question the proper place of visions of progress in the function and application of the law.