The Least Dangerous Branch

The Least Dangerous Branch

ALEXANDER M. BICKEL
With a new foreword by Harry H. Wellington
Copyright Date: 1986
Published by: Yale University Press
Pages: 306
https://www.jstor.org/stable/j.ctt1nqbmb
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  • Book Info
    The Least Dangerous Branch
    Book Description:

    This classic book on the role of the Supreme Court in our democracy traces the history of the Court, assessing the merits of various decisions along the way. Eminent law professor Alexander Bickel begins with Marbury vs. Madison, which he says gives shaky support to judicial review, and concludes with the school desegregation cases of 1954, which he uses to show the extent and limits of the Court's power. In this way he accomplishes his stated purpose: "to have the Supreme Court's exercise of judicial review better understood and supported and more sagaciously used." The book now includes new foreword by Henry Wellington.

    Reviews of the Earlier Edition:

    "Dozens of books have examined and debated the court's role in the American system. Yet there remains great need for the scholarship and perception, the sound sense and clear view Alexander Bickel brings to the discussion…. Students of the court will find much independent and original thinking supported by wide knowledge. Many judges could read the book with profit." -Donovan Richardson,Christian Science Monitor

    "The Yale professor is a law teacher who is not afraid to declare his own strong views of legal wrongs… One of the rewards of this book is that Professor Bickel skillfully knits in quotations from a host of authorities and, since these are carefully documented, the reader may look them up in their settings. Among the author's favorites is the late Thomas Reed Powell of Harvard, whose wit flashes on a good many pages." -Irving Dillard,Saturday Review

    Alexander M. Bickelwas professor of law at Yale University.

    eISBN: 978-0-300-17333-8
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword
    (pp. ix-xii)
    HARRY H. WELLINGTON

    Alexander Bickel wroteThe Least Dangerous Branchin the late nineteen fifties and early sixties when constitutional scholarship was—as it is again today—concerned at least as much with itself as with the Supreme Court of the United States. Besides working a major change in American society, the desegregation decisions had forced students of the Court back to the fundamental questions of constitutional law: the justification for and scope of judicial review.

    When scholarship turns to judicial review it is apt to turn quickly to prior scholarship, for Chief Justice Marshall’s opinion in the 1803 case ofMarburyv....

  4. Acknowledgments
    (pp. xiii-xiv)
    A.M.B.
  5. CHAPTER 1 Establishment and General Justification of Judicial Review
    (pp. 1-33)

    The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known. The power which distinguishes the Supreme Court of the United States is that of constitutional review of actions of the other branches of government, federal and state. Curiously enough, this power of judicial review, as it is called, does not derive from any explicit constitutional command. The authority to determine the meaning and application of a written constitution is nowhere defined or even mentioned in the document itself. This is not to say that the power of judicial review...

  6. CHAPTER 2 The Premise of Distrust and Rules of Limitation
    (pp. 34-72)

    In treating of its establishment and justification, I have spoken of judicial review in one sense as if we knew no more about it than what was vouchsafed us inMarburyv.Madison. That is, I have dealt with it at large, as the power to strike down on constitutional grounds both federal and state legislation and executive action. This is, of course, a very gross statement of the matter. It is an attempt to view the function as a whole without examining the process. And it is absurd, except as one may find it convenient for analytical purposes. I...

  7. CHAPTER 3 “The Infirm Glory of the Positive Hour”
    (pp. 73-110)

    InMarburyv.Madison, it will be remembered, Marshall derived the power of judicial review by putting the case of a conflict between an act of the legislature and the Constitution. There were only two possible ways out of such a conflict, he said. Either the Constitution controls the legislative act which is repugnant to it, or the legislative act controls the Constitution, with the upshot, in the latter instance, that the legislature has the power to alter the Constitution any time it chooses to do so by an ordinary statute. “Between these alternatives there is no middle ground.” Since...

  8. CHAPTER 4 The Passive Virtues
    (pp. 111-198)

    Writing in 1949, Professor Paul A. Freund noted “a remarkable core of agreement on the Court” with respect to human rights and the rights of property. He found that “the degree of concord in this area is much more important than the degree of discord. …” The area of discord included the debate, then at white heat, ofAdamsonv.California, in which Mr. Justice Black and three colleagues were ranged against a majority of the Court, itself abetted by Professor Charles Fairman. Justice Black argued that the Fourteenth Amendment was intended to make any and all principles of the...

  9. CHAPTER 5 Neither Force nor Will
    (pp. 199-243)

    In Chapters 1 and 4, I have examined critically the classical, or, one might say, official, position with respect to the establishment and justification of judicial review. For reasons of analytical convenience, I endeavored in Chapter 1 to state very generally an alternative justification, before attempting to define what it was I was justifying. Subsequently, I proceeded by way of both criticism and affirmation to consider in somewhat greater detail the nature and reach of the power of judicial review, as it has been exercised and viewed in the American tradition. The thesis that emerged was this. The power extends...

  10. CHAPTER 6 The Supreme Court at the Bar of Politics
    (pp. 244-272)

    I have adverted repeatedly, at about every decisive point in the argument of this book, to theSchool Segregation Cases,for they at once epitomize and challenge all that I have tried to say about the role of the Supreme Court in American government. A direct and rather more comprehensive look at these cases is now called for, because their career since May 17, 1954, the date of decision, brings into view another element in the singular accommodation we have achieved between authoritarian judicialism and the practice of democracy. I have suggested that the rule of principle in our society...

  11. Notes
    (pp. 273-290)
  12. Table of Cases
    (pp. 291-294)
  13. Index
    (pp. 295-303)