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Alexander Bickel, Who Defined Supreme Court Paradox, Gets New Consideration

Alexander Bickel sits at a desk and talks on the phone
The late constitutional law scholar Alexander Bickel is the subject of a talk and exhibit 50 years after his death. Photo: Alberto Lau

Alexander Bickel, who declared the Supreme Court a “deviant institution” and left constitutional law scholars to reconcile its place in American democracy ever since, is getting a second look a half century after his death.

A talk and a library exhibit this month consider the influential constitutional theorist’s work and legacy. The activities, timed to coincide with the 50th anniversary of Bickel’s passing, preview a panel discussion on the late Sterling Professor of Law planned for this spring.

Bickel served on the Yale Law School faculty from 1956 until his life was cut short by cancer in 1974. The Sterling Professor of Law was among the most famous constitutional scholars in America at the time. In addition to publishing scholarly work, Bickel was a contributor to The New Republic and other publications and also well known for his legal practice. Bickel helped to represent The New York Times in the Pentagon Papers case, the landmark win for freedom of the press in 1971.

Bickel was the author several books but “The Least Dangerous Branch: The Supreme Court at the Bar of Politics” is his best known. In the 1964 work, Bickel sought evidence of the legitimacy of judicial review — the ability of the court to declare a legislative or executive act in violation of the Constitution — in notable cases from the Supreme Court’s history. He coined the phrase “counter-majoritarian difficulty” to describe the paradox of unelected justices having the ability to override elected lawmakers. With that framing, according to Sterling Professor of Law Anthony T. Kronman ’75, Bickel defined a challenge for a generation of scholars: how to account for the Supreme Court's place in the American system of government.

Bickel’s life and contribution to constitutional theory was the focus of a November 7 talk sponsored by the Yale Federalist Society. Kronman, who is writing an intellectual biography of Bickel, was joined by Sterling Professor Emeritus of Law, Owen M. Fiss, before a full house. Ashley Mehra ’26 introduced the speakers.

Three people stand in front of a chalkboard
Speakers at a talk on Alexander Bickel: Professor Anthony Kronman, left, Ashley Mehra ’26, and Professor Owen Fiss

Central to the talk was contending with Bickel’s notion that the court is specifically suited to address “the enduring values of a society” through judicial inaction or what he called “passive virtues.” Unlike the other two branches of government, which generally address immediate matters, the Supreme Court can decline to make a decision and wait to weigh in until a better time, according to Bickel.

Kronman concluded with what Bickel offers us today. In recent years, Kronman said, intellectual extremism has taken over much of the thinking about the Supreme Court, leaving constitutional law “in a state of exhaustion.”

To revive our thinking, he said, “we might consider returning to Bickel’s nuanced idea of consent, his firm but modest understanding of the place of moral principles in the work of the Supreme Court, and above all, to his insistence for the need for prudence in the exercise of court’s power of judicial review.”

Fiss, responding to Kronman’s presentation, said it was necessary to separate Kronman’s ideas from Bickel’s — as is often the case with intellectual biographies, he explained. Fiss pushed back on one point — the idea that Bickel considered the Supreme Court the most conservative of the government’s branches. Fiss noted that Bickel embraced the Warren Court’s ruling in Brown v. Board of Education and that “there is nothing conservative about that decision” — a ruling that condemned the laws of 17 states and Washington, D.C.

Accompanying the talk is an exhibit about Bickel at the Lillian Goldman Law Library that was curated by Mehra and Nicholas Mignanelli, the library’s assistant director for reference. The display contains first editions of Bickel’s books, original copies of his most-cited law review articles, photos, and other materials.

Mehra explained why Bickel’s work is relevant now.

“Amid today’s debates over reforming the Supreme Court, Alexander Bickel’s work offers a timely reminder to take the longer view of the court’s enduring role in our American political tradition,” Mehra said. “Although critical of the Warren Court in his time, Bickel came to revere the Supreme Court through his discovery of its unique nature as an institution — its peculiar power of judicial review and the ability of justices to exercise ‘passive virtues.’ This reverence is a value I carry, and believe is worth reviving, in discussions about the Court.”