Significance: Legal scholar Bickel prepared a memo on his research of the equal protection clause in preparation for the ruling in Brown v. Board of Education (1954), a pivotal civil rights case before the Supreme Court.
Bickel was a constitutional scholar, Yale law professor, and jurist of the Frankfurter school arguing judicial restraint. He arrived in the United States in 1938. After brilliant academic years at City University of New York and Harvard Law School, he served as law clerk to Justice Felix Frankfurter during the 1952 term when Brown v. Board of Education was first under consideration. Partly to secure more time for the Supreme Court to achieve what he believed was a necessary unanimity, Frankfurter asked Bickel to undertake research on the original understanding of the equal protection clause and convinced the Court to withhold decision pending reargument on this issue. Bickel's 1954 memo concluded that the framers of the Fourteenth Amendment conceived equal protection in different terms from those accepted in the mid-twentieth century but had deliberately chosen broad and malleable terms. His memo (revised) was published in the Harvard Law Review and remains a standard reference. Whether it influenced the Court or not, it helped the Court pause and find agreement in its ultimate decision. In 1956 he joined the Yale law school faculty where he taught until his death. In that year he published a research volume regarding Justice Louis D. Brandeis's scrupulous attention to procedural correctness. His most influential book, The Least Dangerous Branch (1962), examined judicial restraint. In this work, he argued that Marbury v. Madison (1803) was a flawed and unconvincing opinion and that judicial review cannot be adequately defended on logical, historical, or legal grounds. The Court's function is actually to constrain unprincipled legislation, but it earns that right by validating most provisions and by adroitly choosing the occasion for exercising its majoritarian power. Avoidance of confrontation as well as adherence to principle are the “passive virtues” superior to quixotic efforts to overuse the paper powers the Court has only on a limited basis. These themes were elaborated upon in a number of works, especially The Supreme Court and the Idea of Progress (1970) in which he pessimistically predicts reversal of the major Warren Court achievements. Gerald Gunther, in an impressive attack, suggested that the Bickel approach tells the Court to save its power for some mythical big issue that will never come. The Court pretends to protect but retreats when crises develop. Others like Robert H. Bork see Bickel as a seminal figure in understanding the nuanced balance of powers in the U.S. system, although mistaken in his failing to embrace an “original understanding” as the primary and decisive rule for constitutional law. A high point in Bickel's career was as lawyer for The New York Times in the Pentagon Papers case (New York Times Co. v. United States, 1971). He agreed to argue only if he were allowed to acknowledge there were situations in which government could regulate expression, and the case is decided on that nonabsolutist basis. Bickel was a fervent advocate of community governance of schools and the police and saw such local-ethnic devolution as the cure for inner-city and racial antagonism. His conservative legal posture was based primarily on his view of the separation of powers, and his politics were quite different from those assumed by Court watchers.
- Bork, Robert. The Tempting of America. London: Free Press, 1990.
- Gunther, Gerald. “The Subtle Vices of the Passive Virtues.” Columbia Law Review 64 (1964).