Adam J. White, Commentary (March 2012).

Excerpt:

When Yale Law School’s Alexander Bickel died in 1974, George Will declared him “the keenest public philosopher of our time”—and rightly so. In his seminal 1962 book, The Least Dangerous Branch, Bickel argued that although the Supreme Court plays a crucial role in expounding and defending constitutional principles, the Court must wield its power carefully so as not to degrade republican virtue and compromise self-government. In the 1960s, as the Supreme Court’s activism far exceeded those prudential limits, Bickel became the Court’s most eloquent public critic, expressing his vivid disapproval in the pages of COMMENTARY, the New Republic, the Public Interest, and in his own books. Years later, Justice Samuel Alito would credit these writings with inspiring him to attend Bickel’s Yale Law School.

Reviewing The Morality of Consent, Bickel’s posthumous book on constitutional theory, Robert Bork concluded that it “is hard to believe the work will not prove seminal, that the tradition will not be elaborated by others.” But Bork’s prediction proved wrong. Conservatives did not elaborate Bickel’s work; they rejected it, focusing their energies on other constitutional theories, such as originalism, that departed from or even contradicted Bickel’s contentions. Bork himself would eventually reject Bickel and describe The Least Dangerous Branch as ultimately a failure.

This year marks the 50th anniversary of The Least Dangerous Branch. The round number provides a suitable opportunity to examine the book, Bickel’s subsequent work, and the case of his abandoned legacy. For in leaving him behind, the right discarded a tradition of legal scholarship whose place could never have been satisfactorily supplanted by originalism alone.

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