Panel Shows Enduring Influence of Alexander Bickel in Constitutional Law
A panel on constitutional law scholar Alexander Bickel at Yale Law School spanned generations, with attendees including both the late professor’s contemporaries and law students introduced to his work decades later.
“Alexander M. Bickel and the Future of Constitutional Law” was the latest event to revisit Bickel’s work this academic year, following a talk in the fall 4commemorating the 50thth anniversary of Bickel’s death. The most recent panel assembled leading theorists, some of whom were Bickel’s former students at Yale Law School.
Panelists for the Feb. 6 event were Phillip Bobbitt ’75, Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School; Pamela Karlan ’80, Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University; Richard Epstein ’68, Laurence A. Tisch Professor of Law at NYU School of Law; and Adam White, Laurence H. Silberman Chair in Constitutional Governance at the American Enterprise Institute. Sterling Professor of Law Anthony T. Kronman, who is writing a book about Bickel, moderated. The event was hosted by the Yale Federalist Society with funding from Yale Law School’s Oscar M. Ruebhausen Fund.
Bickel, who taught at Yale Law School from 1956 to 1974, was best known for his 1964 book “The Least Dangerous Branch: The Supreme Court at the Bar of Politics” in which he sought evidence of the legitimacy of judicial review in notable cases from the Supreme Court’s history. In it, he coined the phrase “counter-majoritarian difficulty” to describe the paradox of unelected justices having the ability to override elected lawmakers. In addition to contributing to legal theory, Bickel was a prominent practicing lawyer. He helped to represent The New York Times in what became known as the Pentagon Papers case, widely viewed as a landmark win for freedom of the press.
Throughout the conversation, panelists described how Bickel’s ideas have endured. White remarked that in recent years, he has been drawn especially to Bickel’s later writings on American constitutional democracy. At another point, however, Sterling Professor of Law Akhil Reed Amar ’84 asked from the audience if Bickel’s legacy had already been eclipsed. The answer from panelists was a resounding “no.”
Panelists responded that Bickel’s ideas are reflected in the language we use every day to talk about the Supreme Court. Epstein agreed with those points, adding that Bickel remains influential in part because of his gift of phrases. Those phrases are so widely used that people forget their origins, he said.
One cited example was the often-discussed virtue of prudence. Bobbitt colorfully remarked that it is Bickel “whose progeny of pragmatism he fathered and named, of which he wrote the genealogy, and as to which he ultimately renounced paternity. It was Bickel who identified the judicial origin of Prudential argument.” The “counter-majoritarian difficulty” was another oft-used example, Bickel’s phrase that echoes the ongoing debate about the authority of unelected judges versus a legislative body elected by the people to recognize rights.
Panelists also offered personal remembrances. Epstein recalled his time as a student in Bickel’s constitutional law course.
“His reputation as a fierce debater and sharp intellect had proceeded him and both were on ample display,” Epstein said. “And as is evident even now, Bickel … could both entrance and infuriate his audience in a manner of seconds.”
More memories were shared that evening at a dinner that included Bickel’s students, colleagues, and two daughters and niece as guests. Ashley Mehra ’26, the event’s organizer and incoming Coker Fellow for Professor Kronman, said these stories of Bickel’s own moral resolve were particularly meaningful to hear because so much has been written about the centrality of morality in Bickel’s scholarship—on the moral pride of creating a government by consent and moral virtue of self-government.
One such memory came from Sterling Professor Emeritus of Law Guido Calabresi ’58, who recounted visiting Bickel by his bedside in the final days before Bickel’s early death from cancer in 1974 at the age of forty-nine. On one of these visits, Calabresi said, Bickel chuckled that he might have become a Supreme Court justice had he not taken the Pentagon Papers case. But, Bickel remarked, this would have been a shame because he would have died soon after taking the bench and without having spoken the truth. Calabresi remembered Bickel as someone who championed truth even though it may have cost him that appointment.
Mehra found a personal connection to Bickel into the time leading up the event. She said she was struck by how central to Bickel was his outsider perspective as an immigrant that he said made him determined to find what made America exceptional, a search that led him to discover the unique powers of the Supreme Court. That outsider perspective resonated with Mehra, a child of immigrants from India who is the first in her family to study law.
“Learning about Bickel has made me reflect on how taking on the challenge of stepping outside the familiar can actually deepen one’s appreciation for the principles and institutions that define America’s ideals,” she said.
In conjunction with the panels on Bickel, Mehra helped to curate an exhibit5 on Bickel at the Lillian Goldman Law Library.
