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Books

The Unpublished Opinions of Mr. Justice Brandeis

– Harvard University Press, 1957.
“The present volume makes it possible to understand, better than was ever before possible, the forces and methods within the Court that produce the decisions which make law for all of… More

Politics and the Warren Court

– Joanna Cotler Books, 1965.
“For all of the current attacks on the Supreme Court, no sensible critic would argue with the view that our Constitution and courts are basically sound. The crucial issue is whether… More

The Supreme Court and the Idea of Progress

– Yale University Press, 1970.
“Timeless questions about the role of the Supreme Court in the American political and legal system are raised in the late Alexander Bickel’s characteristically astute analysis of… More

The Morality of Consent

– Yale University Press, 1975.
Winner of the 1976 Silver Gavel Award of the American Bar Association Chosen as one of the Notable Books of 1975 by the American Library Association “This short but provocative volume . .… More

Essays

The Court: An Indictment Analyzed

– New York Times Magazine (April 27, 1958).
Abstract: The American people have always had a consuming and not very sympathetic curiosity about confidential advisers to their high officers of government. The real or supposed influence… More

Foreword: The Passive Virtues

– Harvard Law Review 75 (1961).
Excerpt: The volume of the Supreme Court’s business is steadily on the rise. It seems to be, quite simply, a direct function of the birth rate. But the number of important and… More

The Durability of Colegrove v. Green

– Yale Law Journal 72 (1962).
Excerpt: A certain tendency to animism affects lawyers when they talk about cases, and they communicate it to interested laymen. Animated cases rise, struggle, and conquer, or are… More

Reapportionment & Liberal Myths

– Commentary (June 1963).
Excerpt: In the decade since Earl Warren became Chief Justice of the United States, the Court over which he presides has embarked on three major enterprises of social reform—a number… More

Civil Rights Act of 1964

– Commentary (August 1964).
Excerpt: At a news conference in 1962, John F. Kennedy coined the phrase, “sound public constitutional policy.” It was an entirely original conception, a hybrid of constitutional law… More

Much More than Law Is Needed

– New York Times Magazine (August 9, 1964).
Excerpt: If Americans are not convinced that the Civil Rights Act is just and moral, then it will go the way of prohibition and other laws violated, ignored and unenforceable. The first… More

Felix Frankfurter

– Harvard Law Review 78 (1965).
Excerpt: Since the beginning, nearly 100 men have been Justices of the Supreme the Court of the United States. Of these, a dozen–no more–have made their mark, so that their… More

Review of “Invitation to an Inquest”

– Commentary (January 1966).
Book Review of Invitation to an Inquest, by Walter and Miriam Schneir (1965). Excerpt: United States v. Julius and Ethel Rosenberg wasn’t the Dreyfus, the Mooney, the Sacco-Vanzetti… More

Justice and Protection

– Mississippi Law Journal 37 (1966).
Excerpt: The problem of law enforcement in the South, or in a current and not inaccurate phrase, “Jim Crow justice,” has come to be symbolized by a number of well-publicized… More

The Voting Rights Cases

– Supreme Court Review (1966).
Excerpt: Very few statutes can ever have been drafted with a warier eye to the prospect of litigation, or a keener intention to ward it off as long as possible, than the Voting Rights Act… More

Is the Warren Court Too “Political”?

– New York Times Magazine (September 25, 1966).
Excerpt: Earl Warren became Chief Justice of the United States on Oct. 5, 1953, by appointment of President Eisenhower. It was a sudden succession. Chief Justice Warren’s predecessor,… More

Failure of the Warren Report

– Commentary (October 1966).
Excerpt: The Warren Commission (known formally as the President’s Commission on the Assassination of President John F. Kennedy) was born of rampaging suspicions and worldwide… More

Pornography and the Courts

– Commentary (November 1968).
Review of The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill, by Charles Rembar. Excerpt: “Permissive decisions by the Supreme Court in obscenity… More

Review of “The End of Obscenity”

– Commentary (November 1968).
Book Review of The End of Obscenity, by Charles Rembar (1968). Excerpt: “Permissive decisions by the Supreme Court in obscenity cases constituted one of the main issues in the struggle… More

Is Electoral Reform the Answer?

– Commentary (December 1968).
Excerpt: For the first time since the Progressive era of sixty years ago, the American political system may be at a point of significant mutation. The Progressive era gave us women’s… More

Mr. Taft Rehabilitates the Court

– Yale Law Journal 79, no. 1 (November 1969).
Abstract: Mr. Justice David Josiah Brewer died in March, 1910, after twenty years of service on the Supreme Court. On May 31, 1910, in accordance with a custom almost uniformly observed,… More

We’ve Shouted Down Our Sense of Balance

– Washington Post (June 14, 1970).
Excerpt: Among academics and other intellectuals, let alone “poets, yeggs and thristies,” it is not merely fashionable, it is required to speak apocalyptically of the country in… More

The Courts: Need for Change

– New York Times (October 22, 1970).
Excerpt: Nothing, at least nothing that is secular, changes more slowly than the ways of courts. Judges are traditionalists, and they ought to be. After all, the continuity of the… More

On Pornography: Concurring and Dissenting Opinions

– with Stanley Kauffman, Wilson Carey McWilliams, and Marshall Cohen; Public Interest (Winter 1971).
Excerpt: The civil libertarian position on obscenity is that if we forget about it, it will go away. We aren’t told to admire the king’s beautiful cloak. We are told not to care… More

Judging the Chicago Trial

– Commentary (January 1971).
Excerpt: Julius Hoffman, Thomas Foran, William Kunstler, Tom Hayden, David Dellinger, Rennie Davis, Bobby Seale, Abbie Hoffman, Jerry Rubin—these are, like Spiro Agnew, household names we… More

Congress, The President, and the Power to Wage War

– Chicago-Kent Law Review 48, no. 2 (1971).
Excerpt: When the Constitutional Convention was debating allocation of the war power within the federal government George Mason of Virginia said that he “was against giving the power… More

The New Supreme Court: Prospects and Problems

– Tulane Law Review 45, no. 2 (1971).
Excerpt: “The judiciary,” said Hamilton in the 78th Federalist, “has no influence over either the sword or the purse; no direction either of the strength or of the wealth… More

Commentary

– In Federal Regulation of Campaign Finance: Some Constitutional Questions, by Albert J. Rosenthal. Citizen's Research Foundation (1972).

The Constitution and the War

– Commentary (July 1972).
Excerpt: It is frightening when out of the privacy of the Oval Room or of Camp David a decision emerges to invade Cambodia, bomb Laos or North Vietnam, or, as most recently, mine the harbor… More

Citizenship in the American Constitution

– Arizona Law Review 15 (1973).
Abstract: In the view both of the ancients and of modern liberal political theorists, the relationship between the individual and the state is largely defined by the concept of citizenship.… More

Civil Disobedience and the Duty to Obey

– Gonzaga Law Review 8, no. 2 (Spring 1973).
Abstract: “At what point,” asks John Rawls in his celebrated recent book, A Theory of Justice, to which I shall make further reference, “does the duty to comply with laws… More

What Now?

– New Republic (November 3, 1973).

Watergate and the Legal Order

– Commentary (January 1974).
Excerpt: Months ago, when the scandals of the Nixon administration were fewer and relatively simpler, there was some self-serving talk of a commonalty of error among the Watergate… More

Commentary

– In Watergate, Politics, and the Legal Process. American Enterprise Institute (1974).

On Mr. Jaworski’s Quarrel with Mr. Nixon

– New York Times (May 23, 1974).
Excerpt: Special prosecutor Leon Jaworski’s complaint to the Senate Judiciary Committee that the White House is threatening his independence naturally reminds everyone of the quarrel… More

Commentary

Alexander Mordecai Bickel

– Charles L. Black, Jr., Yale Law School, Faculty Scholarship Series, Paper 2603, (1974). Originally published in The Yale Law Journal 84:2 (December 1974).
Excerpt: To an intellectual, courage commands intellectual honesty. There were many times in Bickel’s life when the opinions to which his thought led him did not make him popular… More

Alexander Bickel, Public Philosopher

– George F. Will, in The Pursuit of Happiness, and Other Sobering Thoughts, Harper & Row, 1978. Originally published “The Roots of Watergate,” The Washington Post, December 27, 1974.

Alexander M. Bickel, Political Philosopher

– Robert H. Bork, Supreme Court Review 419 (1975).
Abstract: It is hardly surprising that with his book The Morality of Consent Alexander M. Bickel moved from constitutional scholarship into explicit political philosophy. That would seem a… More

In Praise of Alexander M. Bickel

– Nelson W. Polsby, Commentary (January 1, 1976).
Excerpt: In The Morality of Consent, the late Alexander M. Bickel begins the task of constructing a liberal political philosophy that avoids the optimistic authoritarianism afflicting so… More

The Lost Greatness of Alexander Bickel

– 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… More

Looking Back while Moving Forward

– Ronald Collins, "Online Alexander Bickel Symposium," SCOTUSblog (August 13, 2012).
Excerpt: His name was Alexander Mordecai Bickel (1924-1974). He was one of the great constitutional scholars of his day and the author of The Least Dangerous Branch: The Supreme Court at… More

Too Principled to Stand on Principle?

– Louis Michael Seidman, "Online Alexander Bickel Symposium," SCOTUSblog (August 14, 2012).
Excerpt: At the dawn of the American constitutional tradition, John Marshall wrote in Marbury v. Madison (1803) that “[q]uestions in their nature political . . . can never be made in… More

Certiorari – At the Bar of Law or Politics?

– Kathryn A. Watts, "Online Alexander Bickel Symposium," SCOTUSblog (August 14, 2012).
Excerpt: The Supreme Court’s docket during the October 2011 Term covered a wide range of highly charged, hot-button topics, including television indecency, warrantless GPS surveillance,… More

On Rereading “The Least Dangerous Branch”

– Floyd Abrams, "Online Alexander Bickel Symposium," SCOTUSblog (August 15, 2012).
Excerpt: For me, rereading The Least Dangerous Branch (TLDB) is to return my first days in Yale Law School – and Alex Bickel’s first days as well. We both entered Yale in the fall of… More

Bickel’s Principled Prudence

– Adam J. White, "Online Alexander Bickel Symposium," SCOTUSBlog (August 15, 2012).
Excerpt: 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… More

“It’s Alexander Bickel’s Fault”

– Erwin Chemerinsky, "Online Alexander Bickel Symposium," SCOTUSblog (August 16, 2012).
Excerpt: Modern constitutional theory began with Alexander Bickel’s The Least Dangerous Branch and its declaration that judicial review is a “deviant institution” in American… More

Bickel and Bork beyond the Academy

– Roger Pilon, "Online Alexander Bickel Symposium," SCOTUSblog (August 16, 2012).
Excerpt: A spirited debate over judicial review was unfolding in the legal academy when Alexander Bickel’s The Least Dangerous Branch appeared in 1962. Often abstract, arid, and… More

An Affectionate, but Contrarian, Remembrance

– Richard A. Epstein, "Online Alexander Bickel Symposium," SCOTUSblog (August 17, 2012).
Excerpt: There is little question that The Least Dangerous Branch counts as one of the most important books in constitutional law scholarship ever. Written some fifty years ago, it should… More

How I Spent My Summer of 1961

– Sanford Jay Rosen, "Online Alexander Bickel Symposium," SCOTUSblog (August 17, 2012).
Excerpt: It is trite but true to say “you had to be there” to understand what was going on in 1962 when The Least Dangerous Branch (“TLDB”) was first published. Overt race, gender,… More

Alexander Bickel Has Left the Building

– Sanford Levinson, "Online Alexander Bickel Symposium," SCOTUSblog (August 20, 2012).
Excerpt: This is the fiftieth anniversary of the publication of Alexander Bickel’s The Least Dangerous Branch, by any measure one of the most influential books on constitutional theory… More

Learning about the Supreme Court

– Barry Friedman, "Online Alexander Bickel Symposium," SCOTUSblog (August 20, 2012).
Excerpt: What enduring value does Alexander Bickel’s now-classic The Least Dangerous Branch have today? In what ways does it or should it speak to us? One is tempted to answer: Virtually… More

The Passive Virtue as Means, Not Ends

– Stephen I. Vladeck, "Online Alexander Bickel Symposium," SCOTUSblog (August 21, 2012).
Excerpt: 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… More

Multimedia

New York Times v. United States

– Video, C-SPAN, June 18, 1971.
Following a taped interview with Professor Irons about the case, the audio transcript of arguments in New York Times v. United States was heard. The case involved the federal… More