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 to the relationship of the Court to other institutions of government. They emphasize the importance of explaining carefully and plausibly on what grounds a decisions rests.
In a general way, adherence to these canons does make good sense. It is obviously desirable, for example, that the Court attend carefully not only to the language of a statute but to what took place in the legislature when it was passed. A number of the specific flaws Bickel finds in the various opinions of the Warren Court are worth noting, although they are, as Bickel himself concedes, perhaps no more serious or numerous than those of the Marshall Court or any of the other great eras of the Supreme Court. These canons, moreover, are a good deal more slippery than is generally granted in legal circles, and some of Bickel’s own attempts to apply them are hardly convincing. Sometimes the stridency of his language simply becomes a substitute for persuasive analysis.
Thus he charges that the Court has willfully simplified, if not distorted, history. To support this claim, he cites Katzenbach vs. Morgan, a case which concerned the constitutionality of that portion of the 1965 Voting Rights Act which extended the franchise to Puerto Rican citizens of the US who were literate in Spanish but not in English, and who were barred from voting by state statutes requiring literacy in English. The Supreme Court upheld the power of the Congress under the Fourteenth Amendment to pass this portion of the act. Bickel rejects the Court’s interpretation of the Fourteenth Amendment on the grounds that it has distorted history:
The framers of the Fourteenth Amendment explicitly rejected the option of an open-ended grant of power to Congress freely to meddle with conditions within the States, so as to render them equal in accordance with Congress’s own notions. [p. 48]
For all its assertiveness, this is not convincing. To begin with, Bickel does not support this statement with any evidence whatever. There is neither a footnote to anyone nor a quotation from anyone to show an explicit (or even implicit) rejection of anything. In addition, his notion of the “framers” is a notoriously vague and ambiguous one. Bickel nowhere tells us whom he has in mind or what would count as evidence of “rejection” by a “framer.” Most important, the passage quoted above serves to show how merely pejorative language can be invoked to make a point. Terms such as “open-ended,” “meddle,” “Congress’s own notions” lack rigor and are little more than rhetorical. They do not inform, but do create a mood. Yes, we are inclined to nod, the framers probably didn’t want to give an open-ended grant of power to meddle.
Another kind of internal criticism, and it is the one most often made, is that the Court failed to give a satisfactory reason for its decision. Again, many of Bickel’s observations are sound, but not all of them, for example his attack on the Court’s decision in Harper vs. Virginia Board of Elections. In that case the Supreme Court declared the poll tax unconstitutional. According to Bickel, its reason was that the levy of such a tax was not plausibly related to any legitimate State interest in the conduct of elections. Bickel’s objection to this rationale can be simply stated: the levying of a poll tax is not necessarily capricious or irrelevant, as the Court argued. It might, for example, be imposed by a State in order to weed out those of its citizens who lack a sufficient interest in civic affairs to plunk down their $1.50 or $2.00.
The problem with this kind of argument is that it is too easy to make. Bickel says that the poll tax is not necessarily capricious. Of course it isn’t. But then, barring a legislature that is both candid and insane, no piece of legislation would be necessarily capricious. When a Court holds that a statutory requirement is unconstitutional because it is irrational, it can be making any one of several different kinds of rough, but plausible, judgments. It can be saying that the requirement is not convincingly imposed because it is not justifiable when considered in respect to other interests that are interfered with. It can also be saying that the requirement is not convincingly imposed because it is ill-designed to achieve the objective that is sought.
In barring the poll tax the Supreme Court in the Harper case can be understood to be saying two things: first, that it does not regard the states as having a significant interest in limiting the franchise to those who “really care” about voting (especially since if they don’t care they won’t vote). And second, that it regards the connection between paying a poll tax and “really caring” as an extremely unlikely one. To put the matter this way is not, I think, to strain the Court’s characterization of the poll tax as capricious.
Less satisfying than Professor Bickel’s views on particular decisions are his attempts to elucidate the general grounds upon which his internal criticisms are based. Too often, as I have said, the discussion depends on his use of merely pejorative terms. Characteristic of the entire effort is his description of the Court’s internal failings as excessively “subjective.” Subjectivity, preferences, ad hoc determinations, these are all obviously naughty, for Bickel. They are to be contrasted with objectivity, principle, reason, and other comparably virtuous qualities.
The difficulty with this way of putting things is that the labels become substitutes for meaningful analysis. So I do not think Bickel has said very much or anything controversial when he asserts that a Supreme Court such as ours in a political democracy can only be justified, “if at all, only in the claim that the function never relinquishes the pursuit of reason, and that ultimately it is principled, that the Court does not discharge its office even by doing what most people may think is right or necessary, unless it does so in a principled fashion” (p. 86). All of the justices on the Supreme Court would insist that they too strive for objectivity, principled decisions, and reason. If they have gone wrong it is not because there are any theoretical disagreements on this point. None of the justices, certainly, is committed to the view that his own “subjective preferences” ought to determine the outcome of cases.
The more celebrated charges Bickel makes contain quite different sorts of objections and claims: those relating to how the Court’s decisions worked out in fact. It is, however, hard to see why so much fuss has been made about his argument. Here is one version of it:
…the Warren Court’s noblest enterprise—school desegregation—and its most popular enterprise—reapportionment—not to speak of school prayer cases and those concerning aid to parochial schools, are heading toward obsolescence, and in large measure abandonment. [p. 173]
Obsolescence and abandonment are not very clear notions, but let us see what the claims concerning them come to. In the case of school desegregation, to take only one example, Bickel’s argument turns out to be a weak one for at the outset he makes an enormous qualification: to the degree to which Brown vs. Board of Education was concerned with the evils of segregation imposed by the State—and that was surely the central focus of Brown vs. Board of Education—Bickel does not, apparently, have much to quarrel with. Indeed, his only comment upon what he calls the “minimal” proposition of the Brown case is that it was “about time” that the State was forbidden to classify the population along racial lines (p. 118). In Bickel’s view, Brown is obsolescent only where the Court discusses the central role of education and the harm done to black children who receive a segregated education.
Suppose, he writes, the principle of the Brown case is that segregated education is harmful to black children regardless of whether the segregation results from State laws, or, as is commonly the case in the North, from patterns of residential living. On this reading of Brown, segregated education, whatever the cause, is unconstitutional. It is this special principle and the underlying commitment to the assimilationist role of the public school that Bickel thinks is being abandoned.
In briefest form his argument is that the federal courts would find it difficult, if not impossible, to eliminate de facto segregation, even if they tried to do so. Unless they rule that a parent cannot, if he wishes, send his child to a private school, well-to-do white parents in the North and South will take their children out of the public school system, leaving the poorer children in the public schools. In addition, the exodus of whites to the suburbs makes the physical elimination of de facto segregation all the more difficult. Finally, the black community no longer seems interested in integration. And ironically, in view of the desires of blacks for local control, attempts to minimize de facto segregation would, as Bickel insists, cause further centralization of education in larger and larger educational units.
The trend, Bickel proclaims, is to decentralization. “There is renewed emphasis, therefore…on the indefeasible right of the family to nurture the child and ‘direct his destiny”‘ (pp. 138-39). What then is his prophecy?
Soon it may be impossible to “turn the clock back” to 1954, when Brown v. Board of Education was written. This is not to detract from the nobility of the Warren Court’s aspiration in Brown, nor from the contribution to American life of the rule that the State may not coerce or enforce the separation of the races. But it is to say that Brown v. Board of Education, with emphasis on the education part of the title, may be headed for, dread word—irrelevance. [pp. 150-151]
Hardly a slashing indictment.
It would be surprising, I think, if Bickel’s prophecy were not substantially accurate. Black consciousness has changed greatly since 1954 and so to some extent has white consciousness of black problems. Although it cannot be demonstrated conclusively, there is certainly convincing evidence that these changes in consciousness were due in large part to the Brown case and the forces for change that it generated. Bickel, however, does not deal adequately with this possibility, failing to take account of the degree to which the Brown precedent itself may well have helped to create the new conditions he now sees as a reproach to the Warren Court.
What I find interesting are not Bickel’s prophecy and his mild twitting of the Brown case, but the criticisms that he (and most other legal academicians) do not make of Brown. What can, I think, be pointed out with profit even today is not the “irrelevance” in 1970 of Brown’s commitment to assimilation, but rather the respects in which, in 1954, it reflected the racism that still pervades white (and hence legal and judicial) thinking. The Court’s conception of the evil of segregated education, for example, is one in which all of the harm from segregation is done to the black child who is deprived of the opportunity to learn from and associate with white children. There is no suggestion in the Brown case, just as there is still little genuine acceptance of the point today, that white children might perhaps have important things to learn from black children. What could have been called into question is the conception of the Court in Brown that the sole value of integration consists in giving black children an opportunity to become more like whites of their own age.
A second, and more serious, criticism concerns the implementation of the original Brown decision in the second Brown case, which decreed that integration must proceed “with all deliberate speed.” The point is not simply the novelty of the Court’s refusing to order forthwith the enforcement of the constitutional right of black and white children to attend integrated schools that Brown said they had. Rather, when the verbiage of Brown II is closely examined, we find that the Court justified the doctrine of “all deliberate speed” by arguing that white parents and their children deserved a substantial interval of time to adjust their sensibilities to the forthcoming association with black children. The Court thus assumed it was right to weigh the sensibilities of whites against the enjoyment by black people of their constitutional rights. This assumption was made not only in Brown II but in many subsequent decisions by the government, including, of course, those being made by the Nixon Administration today. The constitutional basis for such an assumption, however, remains unclear.
I raise these issues just because they are not part of the conventional academic criticism of the Warren Court, and they are wholly ignored by Professor Bickel. They seem to me much more important than the kind of obsolescence Bickel concentrates upon.
Still, underlying Bickel’s criticism of specific decisions is a deeper complaint: that the actions of the Warren Court are incompatible with certain conservative principles which are part of the canon of academic legal criticism. Thus Bickel tells us that the real lesson to be learned from the failures of the Court is this:
…I[n] dealing with problems of great magnitude and pervasive ramifications, problems with complex roots and unpredictably multiplying offshoots—in dealing with such problems, the society is best allowed to develop its own strands out of its own tradition; it moves forward most effectively, perhaps, in empirical fashion, deploying its full tradition, in all its contradictions, not merely one or another self-contained aspect of it, as it retreats and advances, shifts and responds in accordance with experience, and with pressures brought to bear by the political process. The only abiding thing, as Brandeis liked to say, is change, and in those broad realms of social policy where that is so, judicial supremacy, we must conclude, is not possible.
The judicial process is too principle-prone and principle-bound—it has to be, there is no other justification or explanation for the role it plays. It is also too remote from conditions, and deals, case by case, with too narrow a slice of reality. It is not accessible to all the varied interests that are in play in any decision of great consequence. It is, very very properly, independent. It is passive. It has difficulty controlling the stages by which it approaches a problem. It rushes forward too fast, or it lags; its pace hardly ever seems just right. For all these reasons, it is, in a vast, complex, changeable society, a most unsuitable instrument for the formation of policy.
Nothing is more evident in the Supreme Court’s past than that most of its prior major enterprises…have not worked out….
[A]side from its forays into broad social policy, the Court discharges a much narrower, but still reasoned and principled, lawmaking function. It makes law interstitially, with effects that may be far reaching and widely felt, if they are at all, only in the aggregate, over time. [pp. 175-176]
Part of the problem is that some of this is unintelligible. I, at least, cannot understand what Bickel means when he writes of developing “strands” out of a society’s own traditions, moving forward in “empirical” fashion, or “deploying its full tradition, in all its contradictions.” Such language contrasts oddly with Professor Bickel’s earlier endorsements of the role of rationality and intelligence in the judicial process.
The passage, however, illustrates the conservative ideas on which Bickel’s entire analysis is based, and on which so much legal criticism rests. The first principle of this canon of criticism is that the Supreme Court ought sensibly to ration the scope and character of its decisions. It ought to try not to do very much. In particular, it ought for the most part to stick to those traditional technical, legal issues with which it has historically dealt and to avoid getting involved in controversial social issues. And, should the Court be drawn into deciding difficult cases, there are a host of subsidiary principles—e.g., the supremacy of the legislature or federalism—that are then invoked to justify limited judicial activity or intervention in the affairs of men.
Bickel, in the passage I have quoted, does give an argument for this first principle: the way litigation occurs, the manner in which legal issues are framed and are presented to the Court for consideration all operate to prevent the Court from making social policy effectively. To this there are two answers. First, the objection in part begs the question. There is considerable flexibility in the way issues can be framed and presented to the Court, not only in the timing and the record of the case in lower courts, but in the arguments made on appeal. As the Court redefines the extent of its concerns, the information required for intelligent decision-making can, up to a point, be presented without impairing the Court’s ability to function.
Second, even if the Court is not a very suitable instrument for the formation of policy, we must still ask whether it is better to have policy made by the Court than not to have it made at all. We may agree with Bickel that it would have been preferable had Congress and the state legislatures taken on the responsibility for eradicating such evils as racial segregation and the malapportionment of legislative assemblies. But we may still argue that neither of these injustices would have been confronted without the Court’s intervention—a consideration Bickel, for the most part, ignores. The case for judicial nonintervention is a far less convincing one, then, in circumstances where the alternative is a major and continuing deprivation of constitutional rights.
I have already said why I am not persuaded by one reply that Bickel would make to such an argument: that the Court’s efforts in these areas have been unsuccessful. He makes two other responses, however, that are characteristic of the conservative tradition in which he writes. One is that the Court’s ability to command respect for and compliance with its decisions is both narrow and fragile. To venture into controversial areas is to increase immeasurably the risk that the public will no longer respect the Court or comply with its decisions. The Court should conserve its decision-making powers in order to make certain that it will retain them.
This claim, in one version or another, is the one most often invoked to criticize the Court’s activities in controversial matters involving race, education, crime, etc. Yet it seems to me that the chief reason for believing the claim to be correct is that so many academicians assert it. The evidence that would be needed to substantiate it has not been supplied by Bickel and those who agree with him. In his book he can cite nothing more impressive in support of this argument than the passage by Congress of the Omnibus Crime Control and the Safe Streets Act of 1968. Some of the features of this bill, it is true, were a response to the Court’s decisions in the criminal field; but this is hardly convincing evidence of the impending judicial apocalypse that has been prophesied by judicial conservatives over the years.
But the most significant aspect of Bickel’s conservatism is his hostility to the idea that it is possible or desirable that intelligence can be directly applied—by the Court, the Congress, or any other body—to solving urgent social problems. As I have said, it is possible to dismiss as unintelligible the phrases he uses to describe his own view of the appropriate processes for social change—e.g., “society is best allowed to develop its own strands out of its own tradition.” But a more sympathetic interpretation would see this rather obscure and mystical rhetoric for what it is—as revealing a point of view which idealizes institutions and sanctifies traditions, which it regards as embodying purposes that are better and wiser than those that men can consciously devise and implement.
There may be good reasons, although I cannot think what they are, why we ought to reject rational inquiry and systematic attempts to cure fundamental social ills. The case for such a view has yet to be made.
It is difficult to exaggerate both how commonly and how unreflectively conservative notions such as these are employed by lawyers and academicians to make supposedly decisive criticisms of the Supreme Court. Perhaps the chief virtue of Bickel’s book is that he does go considerably further than others have done in attempting to explain why he thinks such principles are desirable. But at crucial points Bickel, too, assumes rather than makes the case for legal conservatism. What legal scholarship needs and what Bickel’s book does not adequately provide is a careful and thorough elucidation of these principles, and a genuine and searching assessment both of them and of the assumptions on which they rest.
January 7, 1971