Having It Both Ways

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.”

Politics and the Warren Court is a collection of essays which for the most part originally appeared in popular, rather than technical, journals. They do not, accordingly, display the subtle ingenuity that distinguished the central argument of The Least Dangerous Branch. Yet much of the new collection is based upon the same presuppositions as those which shaped the central argument of The Least Dangerous Branch. One of these presuppositions emerges most sharply in the essay “Curbing the Union,” which deserves particular attention; for it not only helps to expose some of the roots of “the passive virtues,” but clarifies important aspects of Professor Bickel’s thought, particularly the analysis of civil disobedience contained in the two most interesting essays in the new book, “Civil Rights and Civil Disobedience” and “The Limits of Effective Legal Action.”

THE COURT, Professor Bickel tells us in “Curbing the Union,” “is engaged in a continuous colloquy with the nation. Over time, the Court proposes and the nation disposes.” This colloquial theory of constitutional law transforms the decision of a case into the suggestion of a hypothesis. It sees our constitutional history as the by-product of a dialogue between the Justices and the people, a discussion in which the Court sometimes succeeds and sometimes fails in its efforts at persuasion. The theory accentuates the tentative elements in constitutional adjudication and makes an illusion of most finalities in constitutional law. It reminds us that when a decision of the Court is intolerable to the American people the Court probably will allow the critical voice of the people to prevail, either …

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