Volume 6, Number 5 · March 31, 1966
Having It Both Ways
By Mark DeWolfe Howe
Politics and the Warren Court
by Alexander M. Bickel
Harper & Row, 299 pp., $6.95
Three years ago in a book entitled The Least Dangerous Branch, Mr. Bickel, Professor of Law at Yale, gave us a remarkably subtle and discerning interpretation of the Supreme Court's role in the government of the American people. By ingeniously combining a plea for principled decisions with praise for 'the passive virtues,' Mr. Bickel tried, as it were, to have his constitutional law both ways—the way of activating principle and the way of restraining prudence. His aim was to discover the standards which should govern a bold and progressive Court, and at the same time to define the means by which such a Court might passively hold its own exuberance in check. For example, the activism that brought the Court to end segregated education was for him wholly admirable, yet he found the Court no less commendable for having passively postponed decision on the lawfulness of statutes prohibiting miscegenation. In effect, Professor Bickel was telling the Justices that of course they should go out to swim, even specified the branches on which they should hang their clothes, but made it quite clear that there are many occasions when they should not go near the water. Such apparently contrary instructions are not likely to be wholly successful, and a learned critic spoke fairly, I think, when he suggested that Professor Bickel's formula demands '100 per cent insistence on principle, 20 per cent of the time.'
Review, 1904 words
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