Bickel’s Principled Prudence

Adam J. White, "Online Alexander Bickel Symposium," SCOTUSBlog (August 15, 2012).


In writing The Least Dangerous Branch, Alexander Bickel famously drew the title from Alexander Hamilton’s assurance, in Federalist 78, that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”  In hindsight, perhaps Bickel should have drawn the title instead from the lines that followed – namely, Hamilton’s suggestion that the judiciary “may truly be said to have neither force nor will, but merely judgment.”  In The Least Dangerous Branch, and the myriad articles and books that followed, Bickel confronted the challenge that Hamilton’s facile phrase sidestepped: In deciding cases and controversies, how shall the Justices go about exercising “merely judgment?”

Bickel’s answer ingeniously married conservative and progressive instincts.  In doing so, he forfeited the possibility of securing long-term adherents among rival ideological camps.  But by attempting to eschew ideology and seeking answers in prudence and national experience, Bickel followed in the footsteps of two other great progressive conservatives (or, conservative progressives), James Madison and Edmund Burke. He offered a vision of the Supreme Court that vindicates both America’s appreciation of tradition and its aspiration toward ideals.  And as valuable as Bickel’s analysis was in his own time, it is no less indispensable today.