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The Judiciary in American Democracy: Alexander Bickel, the Countermajoritarian Difficulty, And Contemporary Constitutional Theory (Suny Series in American Constitutionalism)

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In 1962, Alexander Bickel, at Yale Law School, published his "The Least Dangerous Branch," a book that had an immediate tremendous impact on discussions about the Warren Court and the role of Supreme Court generally in the American political system. Bickel, unfortunately for all of us, died shortly before his 50th birthday in 1974. He had, however, written a series of impressive books on the Court, including "Politics and the Warren Court," "The Supreme Court and the Idea of Progress," and posthumously "The Morality of Consent." Bickel spent much time grappling with the so-called "countermajoritarian difficulty" (i.e., was it legitimate for the Court to overule the elected branches?), which has bedeviled most all subsequent discussions of the Court's appropriate role. His discussion of the "passive virtues," whereby the Court could delay or avoid outright constitutional decisions became as much discussed as Wechsler's "neutral principles" during the 1960's.

The focus of this fine collection of articles is what role Bickel's theorizing has had since his death and particularly how pertinent is it to present assessments of the Court's role. The collection is well structured, with a Robert Nagel brief introduction to Bickel and his approach. There are two essays which I found particularly effective. Peters and Devins focus on what they term the "new judicial minimalism" (ala, e.g., Sunstein's "One Case at a Time"), which discusses the current versions of Bickel's ideas and the division of approaches within the ranks of the "new minimalists." The second essay is by Terri Peretti on what she terms an "empirical analysis" of the LDB, in which she finds that Bickel's diagnosis of problems with judicial review is often not based on concrete evidence. Singling out these two essays is not to denigrate the remaining contributions (by Tushnet, Golove, Brubaker, Ward and Whittington) all of which handsomely repay the reader's investment of time in reading them. The book comes in at slightly under 200 pages, including solid notes for each essay. There is much to think about on the issue of the appropriate role for judicial review, and this excellent collaborative effort highlights a number of the most critical issues and approaches.