The Supreme Court and the Idea of Progress
Professor Bickel’s book has had more attention than most books by law professors—even when they write about the Supreme Court. I was not in the United States when the book was published, but I saw several newspaper columns and a rather long article in Time magazine about the book, all of them claiming that it was a thorough-going and harsh criticism of the Warren Court. Bickel’s view that the Court’s most famous decision, Brown vs. Board of Education, is “irrelevant” and obsolete was regarded as especially news-worthy. The dust jacket, moreover, tells us that the book accuses the Court of “irrationality, inconsistency, and, at times, incoherence; of overconfidence in itself and in the rule of the majority; and of unwise decisions which lead to undue centralization of government.”
The book does not live up to its advance billing. For the most part the arguments in it are all familiar ones—at least within legal and academic circles—having been made previously by Professor Bickel and many other law professors in the law reviews. His criticisms of the Warren Court, while often polemical and strident, are, if anything, less harsh and more balanced than a number of others that have appeared during the past fifteen years. The book is neither especially novel nor forceful in its criticism of the Court. It is of interest largely because it illustrates a common kind of legal, academic criticism and is worth examining for this reason.
Bickel criticizes in detail the major decisions of the Warren Court and presents some general arguments intended to show why the Court went wrong and how it might improve. As he makes clear, he sees himself as writing in the tradition of judicial criticism associated with Felix Frank-furter, Learned Hand, and the teachers of Constitutional law in many law schools, especially Harvard and Chicago. This tradition puts great weight upon the rigor of the methods used by the Supreme Court in accepting and deciding cases; and it places even more emphasis upon the “conservative” judicial position, which insists that the court has no business attempting to solve complicated and controversial social problems. Bickel moves beyond this tradition, however, in his willingness to give equal, if not greater, weight to the historical effects of the Court’s decisions, which he analyzes to discover whether on the whole they have worked in practice.
Most of Bickel’s “internal” criticisms of the Court are of a kind that is familiar to legal academicians and lawyers. He tries to show how the Warren Court strayed from the traditional canons of judicial craftsmanship to which the Supreme Court is supposed to adhere. The purpose of these canons is to ensure that the Court will not be arbitrary or cursory in deciding cases but will decide them in accordance with appropriate rules and principles of law. They insist that due weight be given to the earlier decisions, or precedents, made in analogous situations, to the legislative history of relevant statutes, and …