BICKEL, ALEXANDER MORDECAI

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 He edited The Unpublished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.
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 Caseload
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.