Customer Reviews

The Least Dangerous Branch: The Supreme Court at the Bar of Politics

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This book is one of the true classics of constitutional scholarship. Although written in 1962, the book still contains valuable lessons for current times. In a nutshell, Bickel's approach to judicial review is cautious, skeptical. He possesses doubts as to the reasoning put forward in Marbury v. Madison, the seminal decision laying the groundwork for U.S. judicial review. Yet he is wise enough to realize that in a constitutional democracy, the judiciary must exercise some power to check the other two branches. The inescapable tension between these two positions is what propels the book along. Written only several years after Brown v. Board of Education and just coming at the start of the Warren Court's run of activism, it reads almost as a historical novel at times. Bickel was one of the leading constitutional scholars of the second half of the 20th century, and this book is the earliest full exposition of his views. These views would change over the years before his untimely death in 1974 (compare this book with his final work, The Morality of Consent), but it is fun to see where he started from and how his thinking evolved.

This book is a classic text on judicial restraint and one of the best studies of constitutional law. Law professor Author Alexander M. Bickel was one of the most influential constitutional commentators of the 20th century, and this book is a masterwork. In it, Bickel famously coins the term "countermajoritarian difficulty" to describe his view that judicial review undermines democracy. Whether you are conservative or liberal, you will find his discussions on the role of the Supreme Court in our democratic society compelling and insightful.

First of all, there's no denying that this is a classic book about courts. I'd seen Bickel cited numerous times long before I ever read this. Despite that, or perhaps because of that, reading it was a bit of a disappointment. Bickel asks important questions about the origins of constitutional review in the U.S. and makes a strong argument for judicial restraint. Yet, those questions seem old and rehashed ad nauseum in the field of judicial politics. Moreover, Bickel admits that Marbury v. Madison potentially had textual foundations (saying Marshall's interpretation was permitted, but not required, by the text), but he still seems intent on claiming the decision rests on shaky grounds. After 200 years, there just don't seem to be any politically potent challenges to the Supreme Court's power of constitutional review. If anything, it appears Bickel overstated his case. Still, this is useful corrective for anybody who still thinks constitutional review is the Supreme Court's God-given right.

First of all, there's no denying that this is a classic book about courts. I'd seen Bickel cited numerous times long before I ever read this. Despite that, or perhaps because of that, reading it was a bit of a disappointment. Bickel asks important questions about the origins of constitutional review in the U.S. and makes a strong argument for judicial restraint. Yet, those questions seem old and rehashed ad nauseum in the field of judicial politics. Moreover, Bickel admits that Marbury v. Madison potentially had textual foundations (saying Marshall's interpretation was permitted, but not required, by the text), but he still seems intent on claiming the decision rests on shaky grounds. After 200 years, there just don't seem to be any politically potent challenges to the Supreme Court's power of constitutional review. If anything, it appears Bickel overstated his case. Still, this is useful corrective for anybody who still thinks constitutional review is the Supreme Court's God-given right.