Bickel 1962 The Least Dangerous Branch

See also: Rosen, Jeffrey The Most Democratic Branch (2006)
Kaplan, David A. The Most Dangerous Branch (2019)

Possibly written as a plea to the Warren Court to slow down its pace of change.

2023-09-06: Bickel Exerpt from The Least Dangerous Branch (1962)

• The root difficulty is that judicial review is a counter-majoritarian force in our system. ... control by an unrepresentative [appointed, unelected] minority of an elected majority [of the Senate. Currently 16% of the population lives in 26 states or 52 senators based upon the 2020 census]. (page )
• [Chief Doubts of Judicial Review]
• First:[asserts that] "faction" [Madison], "groups" [D.B. Truman], "interests or pressure groups" [popular parlance] tend to be majoritarian in composition and to be subject to majoritarian influences. ...what they sell or buy in the legislature is determined by biennial or quadrennial electoral marketplace. [!?] ... only those minorities rule which can command the votes of a majority of individuals in the legislature who can command the votes of a majority of individuals in the electorate. ()
• Second: Besides being a counter-majoritarian check on the legislature and the executive, judicial review, may in a larger sense, have a tendency over time to weaken the democratic process. (
• For the moment the discussion is at wholesale, we are seeking a justification [of judicial review] on principle, quite aside from supports in history and the continuity of practice. [!?] ()
• The search must be for a function which might (indeed, must) involve the making of policy, yet
  • which differs from the legislative and executive functions;
  • which is particularly suited to the capabiliities of the courts;
  • which will not likely be performed elsewhere if the courts do not assume it;
  • which can be so exercised as to be acceptable in a society that generally shares Judge Hand's satisfaction in a "sense of common venture";
  • which will be effective when needed; and
  • whose discharge by the courts will not lower the quality of the other department's performance by denuding them of the dignity and burden of their own responsibility. ()
• ... many actions of government have two aspects: their immediate, necessarily intended, practical effects, and the unintended or unappreciated bearing on the values we hold to have more general and pernament interest. ... which institution of our government--if any single one in particular--should be the pronouncer and guardian of such values. [what is the need? a recasting of countermajoritarianism. And, if there is to be such a body, is it not a (the primary?) purpose of the Senate with is longer tenure?] ()
• Initially [originally, originalism?], great reliance for principled decision was placed in the Senators and the President, who have extended terms of office and were meant to elected only indirectly. Yet the Senate and the President were conceived as less closely tied to, not as divorced from, electoral responsbility and the political marketplace. (25)
• Judges have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government. This is crucial in sorting out the enduring values of a society, .... It calls for a habit of mind, and for undeviating institutional customs. (25)
• Statutes [!?? or Constitution writing] , after all, deal typically with abstract or dimly foreseen problems. [!?] The courts are concerned with the flesh and blood of an actual case. [and therefore who they may privilege and who they may harm.] (26)
• Hence it is that the courts, although they may somewhat dampen the people's and the legislature's efforts to educate themselves, are also a great and highly effective educational institution. (26) [shadow docket...no explanations. who reads court opinions.] [Shadow Docket belies this]
• The educational institution that both takes the observation to correct the dead reckoning and makes it known is the voice of the Constitution: the Supreme Court exercising judicial review. (26) [Shadow Docket]
• The heart of the democratic faith is government by the consent of the governed. The further premise is not incompatible that the good society not only will want to satisfy the immediate needs of the greatest number but also will strive to support and maintain enduring general values. I have followed the view that the elected instituations are ill fitted, or not so well fitted as the courts, to perform the latter task. (27)
• Having been checked, should the people persist; having been educated, should the poeple insist, must they not win over every fundamental principle save one--which is the principle that they must win? (28) [even to amending the Constitution]
• [paean to judges as have time, education, habit of mind, to guard the enduring values of a society...such is his justification of judicial review.]
• [Compare the courts record in voter suppression to Congress passing civil rights acts and voting rights act which the court has worked to limit in their effectiveness.]

• Doerfler The Ghost of John Hart Ely (2022)
• Karlan The New Countermajoritarian Difficulty (2021)
• Spann Gerrymandering Justiciability (2020)
• Strine Corporate Power Ratchet: The Courts’ Role in Eroding “We the People’s” Ability to Constrain Our Corporate Creations (2016)
• Gilman A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality (2014)
• Somin Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the “Central Obsession” of Constitutional Theory (2004)
• Friedman The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy (1998)
• Friedman The History of the Countermajoritarian Difficulty, Part Two: Reconstruction's Political Court (2002)
• Friedman The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner (2001)
• Friedman The History of the Countermajoritarian Difficulty, Part Four: Law's Politics (2000)
• Friedman The History of the Countermajoritarian Difficulty, Part Five: The Birth of an Academic Obsession (2002)
• Ely Democracy and Distrust (1980)