The Least Dangerous Branch

Alexander M. Bickel, “The Least Dangerous Branch” (The Supreme Court at the Bar of Politics), The Boobs-Merril Co. Inc, 1962

A very technical book, probably used in law classes concerning the Supreme Court. Tedious reading but interesting.

Alexander Hamilton in the 78th Federalist, “The Judges as Guardians of the Constitution.”: “Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least in a capacity to annoy or injure them.”

Establishment and General Justification of Judicial Review:
Nowhere in the Constitution is there a mention of the right of Judicial Review. Chief Justice John Marshall created this right in the 1803 Marbury v Madison decision. William Marbury and others sued Secretary Madison for delivery of their commissions as justices of the peace for the County of Washington in the District of Columbia, an office to which they had been appointed in the last moments of the administration of President John Adams. Marshall held that they were entitled to their commissions, but that the Supreme Court was without power to order Madison to deliver, because the section of the Judiciary Act of 1789 that purported to authorize the Court to act in such a case as this was itself unconstitutional. (Wasn’t this a slick way to slide the Supreme Court in as arbiter?) Thus did Marshall assume for his Court what is nowhere made explicit in the Constitution—the ultimate power to apply the Constitution, acts of Congress to the contrary notwithstanding.

Pg. 9: The Supremacy Clause of Article VI: “The Constitution and the Laws of the U.S. which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the U.S., shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The clause speaks to the constituent states of the federation and tells them that federal law will supersede any contrary state law.

Pg. 14: Marbury v. Madison, relating to the power to hold federal statues unconstitutional, and Martin v. Hunter’s Lessee and Cohens v. Virginia, which assumed the power of judicial review of state actions, were decided, respectively, in 1803, 1816, and 1821.

Pg. 37: If the legislature is to be held to have made a mistake, it must be a very clear one. Thus, in the McCulloch case, Marshall upheld the power of Congress to incorporate the Bank of the U.S. although the Constitution is thoroughly inconclusive on the point. But Congress thought it had the power, and the President agreed. “It would require no ordinary share of intrepidity to assert that the measure was a bold and plain usurpation, to which the constitution gave no countenance.”

Pg. 45: More recent discussions of the process of judicial review must be seen against the background of the history of the Court since the turn of the 20th century. There has been considerable change over the years in the substance of the problems coming to the Court. In its earliest years the Court was occupied with establishing its right of judicial review. Subsequently, it struggled with the problem of protecting a common national market against particularistic economic actions of the states. Just before the Civil War, the Court committed the Dred Scott Case, and that was more than a crime; it was a blunder. There followed a war which, like all wars, was very hard on judges, the most ineffectual period in its history. Later the Court launched itself upon a task of protecting the business community against government. The Court continued to serve laissez-faire in the most uncompromising fashion, at a time when it was well past its heyday, five Justices, in a series of spectacular cases in the 1920s and 1930s, went to unprecedented lengths to thwart the majority will. The consequences almost brought down the Courts when FDR tried his court-packing. Now (in the 1960s, when this book was written) the central problems concern civil liberties.

Pg. 71: There was a time, following the Civil War, when segregated public education marked a great advance toward the achievement of equal citizenship for the Negro. It was no more defensible on principle then that it is now. But men of principle, concerned with providing education of any sort for newly freed slaves, readily tolerated it as a necessary compromise. The Supreme Court made the grave error of lending its affirmative sanction to the practice of segregation in the nineteenth century, and doing so on principle, across the board. This was the error, not failure at the early date to strike down segregation as unconstitutional. For the moment, unless and until experience should belie the hope that may animate benevolent quota proposals or demonstrate that rather than a possibly progressive expedient, they are a retrogressive one, benevolent quotas should be allowed their season of leeway, without offense to principle. They may well be for the 1960’s the equivalent of segregated schooling a century ago. This is not to say that the Supreme Court should legitimate them—only that it should leave their constitutionality undecided. (Now it is 40 years later).

Pg. 105: If a constitution purports to settle, in detail and for all time, most of the issues that are likely to be the grist of the political mill, it invites either abandonment or frequent amendment. Again and again, in our own states, where it has done relatively little harm, and in other countries, the validity of this assertion has been painfully demonstrated. Constitutions that have tried to settle too much, promptly became and remained the focal point of political controversy, lasted for a turbulent day, and passed, taking the “regime” with them. A striking example was the Spanish republican constitution of 1931. It contained in the greatest possible detail provisions for the disestablishment of the Spanish Church. As it was, all Spanish Catholics were forced into the position of having to oppose the very Constitution of the Republic if they wished to criticize its educational or religious policy.

Pg. 115: One of the chief faculties of the judiciary, which is lacking in the legislature and which fits the courts for the function of evolving and applying constitutional principles, is that the judgment of courts can come later, after the hopes and prophecies expressed in legislation have been tested in the actual workings of our society; the judgment of courts may be had in concrete cases that exemplify the actual consequences of legislative or executive actions. The courts have wisely never given advisory opinions nor allowed persons of no standing to bring suit nor rule on moot issues, nor rule when there is no longer a controversy. (Note that many state supreme courts, do issue advisory opinions.)

Note also: The controversial case of Roe v. Wade was a notable exception to the actual controversy requirement. Justice Harry Blackmun wrote that due to the natural limitation of the human gestation period, issues concerning pregnancy will always come to term before the appellate process is complete. Roe v. Wade 410 U.S. 113 (1973). In essence, the rigid application of the actual controversy requirement would effectively deny review. Therefore, the Supreme Court held that a ban on abortion was unconstitutional despite the issue being moot.