Bickel, Alexander Mordecai

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Bickel, Alexander Mordecai

Alexander Mordecai Bickel was a noted legal scholar, law professor, and essayist who wrote extensively about Constitutional Law issues and the U.S. Supreme Court.

Bickel was born December 17, 1924, in Bucharest, Romania, and immigrated to the United States with his parents in 1939. He attended the City College of New York, graduating Phi Beta Kappa in 1947, and Harvard Law School, where he served as editor of the Harvard Law Review and graduated summa cum laude in 1949.

Following law school, Bickel clerked for Judge Calvert Magruder of the U.S. Court of Appeals in Boston. From 1950 to 1952 he was a State Department law officer in Frankfurt, Germany, and he was a member of the European Defense Community Observer Delegation in Paris. He returned to the United States to become law clerk to Justice Felix Frankfurter during the U.S. Supreme Court's 1952–53 term.

Bickel assisted Justice Frankfurter in the Court's consideration of the landmark desegregation decision in brown v. board of education, 349 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). The plaintiffs in Brown challenged the assignment of black and white students to separate public schools. The Court held that such racial Segregation in public education was unconstitutional. During his clerkship with Frankfurter, Bickel studied the Fourteenth Amendment extensively and concluded that the Constitution did provide that congressional or judicial action could be used to abolish school segregation.

After completing his clerkship with Justice Frankfurter, Bickel joined the faculty of Yale Law School, in 1956. He was named Chancellor Kent Professor of Law and Legal History in 1966, and Sterling Professor of Law in 1974, the year of his death.

Bickel wrote a number of influential books and essays. In addition to longer works, he published more than a hundred articles in newspapers and magazines. He edited The Unpublished Opinions of Mr. Justice Brandeis, a volume of eleven Brandeis draft opinions concerning the issue of judicial restraint, a major theme in much of Bickel's later writings. In his most influential work, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1963), Bickel argued that courts should make decisions that are grounded in history and in the values found in the Constitution, and should not make decisions that cannot gain public support. He believed that judges should exercise care to avoid deciding constitutional issues if other grounds for a ruling are available, such as grounds for refusing to hear the case or grounds for using doctrines like statutory construction to decide the case.

"[The judiciary is] the least dangerous branch of our government."
—Alexander Bickel

In The Supreme Court and the Idea of Progress (1970), another work advocating judicial restraint, Bickel criticized the activism of the Warren Court in tackling social issues. He noted that "history has little tolerance for … [the Court's] reasonable judgments that turn out to be wrong." Bickel also argued for judicial restraint in the so-called Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), in which he represented the New York Times before the Supreme Court. In Pentagon Papers, the government sought to prevent the New York Times and the Washington Post from publishing the contents of a classified study titled History of U.S. Decision-Making Process on Viet Nam Policy. Rather than arguing that Prior Restraint of the publication of the classified material was unconstitutional, Bickel instead maintained that the government had been unable to rebut the heavy presumption against prior restraint and that such restraint was to be found in congressional legislation rather than in assertions of governmental power. The Court ultimately rejected the government's claim that the papers should not be published, and several of the justices adopted Bickel's analysis in their opinions. A recognized expert on the Supreme Court of the United States, Bickel served as a member of the Study Group on the Caseload of the Supreme Court. In 1973, he authored The Case-load of the Supreme Court, and What, If Anything, to Do about It, in which he concluded that the Court's caseload should be reduced. Easing the Court's workload is critical, he argued, to ensure careful deliberation of important issues and to avoid transforming the Court "into a high-speed, high-volume enterprise" that would "mock the idea of justice and mock the substantive reforms of a generation."

Further readings

Bickel, Alexander M. 1973. The Caseload of the Supreme Court and What, If Anything, to Do About It. Washington, D.C.: American Enterprise Institute for Public Policy Research.

——. 1970. The Supreme Court and the Idea of Progress. New York: Harper & Row.

——. 1963. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Dobbs-Merrill.

Congressional Quarterly. 1989. Guide to the U.S. Supreme Court. 2d ed. Washington, D.C.: Congressional Quarterly. 1990.

Ward, Kenneth. 1996. "Alexander Bickel's Theory of Judicial Review Reconsidered." Arizona State Law Journal 28 (fall): 893–926.