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

by Alexander M. Bickel

This classic book on the role of the United States Supreme Court traces the history of the Court, assessing the merits of various decisions along the way. Alexander Bickel begins with Marbury v. Madison, which he says give shaky support to judicial review, and concludes with the school desegregation cases of 1954, which he uses to show the extent and limits of the Court’s power. In this way he accomplishes his stated “to have the Supreme Court’s exercise of judicial review better understood and supported and more sagaciously used.” The book now includes a new foreword by Harry H. Wellington. Alexander Mordecai Bickel (1924-1974) was one of the most influential constitutional commentators of the twentieth century. 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 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 counter-majoritarian 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.

Genres: Law, Nonfiction, History

320 pages, Paperback

First published September 10, 1986

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

[B · Rating 2 out of 5]

The blurb on the back is the most cutting I've ever read, I think. It's one of two blurbs.

And more, it cuts to the quick:

"The Yale professor is a law teacher who is not afraid to declare his strong views of legal wrongs. . . .One of the rewards of this book is that Professor Bickel skillfully knits in quotations from a host of authorities and, since these are carefully documented, the reader may look them up in their settings. Among the author's favorites is the late Thomas Reed Powell of Harvard, whose wit flashes on a good many pages." - Irving Dillard, Saturday Review

[Kyle]

Note to self: Recommended by Neal Katyal. Stating that it is one of the greatest books on Constitutional Law.

Video Reference [duration 1:53]: https://www.youtube.com/watch?v=Vt4cF...