The Passive Virtue as Means, Not Ends

Stephen I. Vladeck, "Online Alexander Bickel Symposium," SCOTUSblog (August 21, 2012).


The summer after the Supreme Court’s 2011 Term seems a strange moment to reflect upon Alexander Bickel’s The Least Dangerous Branch – and his Harvard Law Review foreword on the “passive virtues” that preceded it. After all, “passive” could be just about the most inapt word to use to describe a Court that just decided Arizona v. United States and NFIB v. Sebelius, and that will soon confront the constitutionality of race-based affirmative action (to say nothing of the constitutionality of the Voting Rights Act of 1965 or of state bans on gay marriage).