Vol. 16 No.2 (February 2006), pp.126-132

THE JUDICIARY AND AMERICAN DEMOCRACY: ALEXANDER BICKEL THE COUNTERMAJORITARIAN DIFFICULTY AND COMTEMPORARY CONTEMPORARY CONSTITUTIONAL THEORY, by Kenneth D. Ward and Cecilia R. Castillo (eds). Albany: State University of New York Press, 2005. 198 pp. Cloth $55.00. ISBN: 0-7914-6555-1.

Reviewed by Eileen Braman, Department of Political Science, Indiana University. Email: ebraman [at]indiana.edu.

In choosing the title for his seminal work, Alexander Bickel injected a healthy dose of irony into constitutional theory.  As several of the contributors to this volume edited by Kenneth D. Ward and Cecilia R. Castillo note, THE LEAST DANGEROUS BRANCH (Bickel, 1962) was written not long after BROWN v. BOARD OF EDUCATION, a decision with such far-reaching implications for American society that Hamilton’s words in FEDERALIST 78 seem like they came from a bad fortune teller.  Yet Bickel did not mean to mock the vision of the judiciary set forth by Hamilton, but to struggle with it in light of one-hundred fifty years of historical experience.  Like Hamilton’s, Bickel’s Court was one with unique capacity to make principled judgments; like Hamilton, Bickel portrayed the judicial function as an essential component of our constitutional system.  With benefit of hindsight, however, including famous (and infamous) Supreme Court decisions, Bickel attempted to assess the implications of judicial review for American democracy more broadly.  Recognizing that the highly visible exercise of non-democratic authority can have detrimental implications for democracy, he famously argued that judicial decision makers should exercise prudence when invoking judicial review until it is clear their participation is absolutely necessary to resolve important constitutional conflicts.

THE LEAST DANGEROUS BRANCH was, and will remain, a landmark for its grand reassessment of the judiciary’s role in our constitutional system at a critical time in our history.  The question for contributors to Ward’s and Castillo’s edited volume, THE JUDICIARY AND AMERICAN DEMOCRACY, is what relevance do Bickel’s ideas have today?  The answer, as one might expect in a book with nine contributing scholars from different disciplinary perspectives, is mixed.  

Although detailed knowledge of contemporary schools of constitutional thought is not absolutely necessary for reading this volume, it is certainly helpful.  Essays range from charactering Bickel’s approach as internally inconsistent (Robert F. Nagel, “Precedent, Prudence and Judicial Power”) and based on flawed assumptions (Terri Peretti, “An Empirical Analysis of Alexander Bickel’s THE LEAST DANGEROUS BRANCH”), to suggesting Bickel’s theory, viewed in its proper light, is a precursor for various strands of constitutional thought espoused by some of our most respected contemporary theorists including Cass Sunstein [*127] (Christopher J. Peters and Neal Devins, “Alexander Bickel and the New Judicial Minimalism”) and Ronald Dworkin (Kenneth D. Ward, “ Bickel and the New Proceduralists”). 

In his introduction, Ward warns that Bickel’s significance remains “elusive” if one is to measure his contribution by the assessments of the authors in this volume (p.1).  Even contributors that attribute an important place for Bickel’s ideas seem to characterize them as an historical footnote, more significant for the auxiliary and counter theories they spawned than any time-tested insight offered by Bickel himself. This is unfortunate, and I think fundamentally mistaken upon a broad reading of this compellation of essays. 

Each contributor characterizes Bickel’s ideas in his or her own way.  Although this makes the volume somewhat choppy, especially where authors repeat quotes or redefine terms, it also underscores what is fundamental in Bickel’s theory.  Over and over the authors return to three main themes: (1) countermajoritarianism (a term attributed to Bickel himself); (2) “passive virtues;” and (3) the inter-branch colloquy that Bickel envisioned as emanating from the Court’s decision to employ (or not employ) judicial review in particular cases.  Oddly enough, although each of these aspects of Bickel’s theory have “gained a life of [their] own” in the forty years since THE LEAST DANGEROUS BRANCH was published, Ward tells us that Bickel “has lost his allure” because constitutional theorists have concluded his response to the countermajoritarian difficulty was “deficient” and characterized his ultimate quest to justify judicial review as a failure (p.147).

If this is the criterion by which Bickel’s contemporary relevance is to be judged, the bar seems exceedingly high.  One wonders why identifying the countermajoritartian difficulty itself, along with a jurispudental philosophy to address the problem (which, incidentally, has shaped constitutional discourse over the last half century) is not “enough” to make Bickel relevant.  Indeed, one could argue that this is much more than most contemporary theorists have done.  Moreover, whether anyone else has provided a “better” justification for judicial review or even endeavored to take on the question with the same enthusiasm for addressing the range of political and jurisprudential implications, is at best, arguable. 

Yet, consistent with Ward’s characterization, contributors imply that considering Bickel’s theory in isolation, without significant alteration or elaboration, is no longer “where it’s at” in constitutional [*128] thinking. Essays directly address some shortcoming in Bickel’s theory or compare it to some alternative school of constitutional thought. Specifically, Bickel’s philosophy is compared to interpretive approaches, including but not limited to, those touted by Sunstein, Ackerman, and Dworkin. Predictably, Bickel comes out behind in many of these comparisons or his ideas are characterized as influential, but outdated. Upon reading these summaries of contemporary theory, however, I was left with the unsettling impression that recent constitutional thinking does not necessarily represent advancement over the classic jurisprudential approach offered by Bickel—if his insights are no longer relevant in contemporary constitutional thinking, perhaps they should be.

For instance, in “The Jurisprudence of Constitutional Regimes,” Mark Tushnet argues that Bickel’s ideas were well suited for the New Deal/Great Society regime of the 1950s and 60s where the primary contribution of the Court was validating interest group pluralism through the programmatic liberalism of justices chosen in an era of “long Democratic Party dominance” (p.27).  On this account, Bickel’s portrayal of the Court’s unique capacity for principled deliberation helped to “validate interest-group bargains struck in the political arena” and “justify the emerging commitment to substantive rights” (pp.23, 25).  According to Tushnet, however, the growing acceptance of legal realism, coupled with political changes that produced a more diverse national policy-making elite, made it clear that constitutional principles were, in fact, contestable.  The result was a regime transition where Cass Sunstein’s concept of “judicial minimalism” and advocacy of “shallow” opinion writing are better suited to the needs of the current justices.

According to Tushnet these techniques are especially useful because they (1) limit the applicability of contested constitutional judgments to the particular circumstances in which they arise, and (2) help mirror principled contestations that exist in society “by drawing from a variety of principles.”  In this way, shallow opinion writing “resemble(s) the compromises legislators make in working out the details of a statute” (p.32). Tushnet admits this new approach is not all together satisfactory because it puts judges who may lack the proper background and/or political astuteness in the position of having to make political calculations in the context of decision making.  He does argue, however, the approach is more compatible with the needs of the current constitutional regime.

Tushnet presents a very interesting portrayal of adaptive constitutional thinking.  The problem with this rather fluid conception of appropriate interpretive strategy becomes clear, however, if one accepts the notion that one of the primary functions of the Constitution is to protect individual rights from majoritarian encroachment.  If the constitution embodies fundamental principles that transcend particular trends in public opinion, then interpretive strategy should not change with political context.  Bickel did not portray his theory as time bound.  The fact that others can characterize it as such is perhaps the problem with what Terri Peretti refers to as the “legal academy’s longstanding . . . obsession with the countermajoritarian difficulty” (p.132); over-thinking the problem can lead to perverse results that gut the very protections the Constitution was meant to provide.

The point that “newer” constitutional theory is not always an improvement over Bickel’s insights is further illustrated by the distinction Christopher D. Peters and Neal Devins make [*129] between “procedural” and “substantive” avoidance tactics in their essay.  Peters and Devins correctly classify Bickel’s conception of “passive virtue” as “procedural deference, the use of process-based judicial techniques to avoid ruling on the constitutionality of a political decision unless, and until, the constitutional principle in question became relatively clear” or clearly intractable, through the operation of the political process (p.46). 

They contrast Bickel’s conception of constitutional avoidance with a more recent strand of “substantive deference” espoused by constitutional theorists as a way of addressing the merits of the constitutional issue in limited fashion that acknowledges pluralistic principles on both sides of the issue, thus validating (and encouraging) continued political debate about contested constitutional matters. Sunstein’s concept of judicial minimalism is one example, but they cite others including Michael Dorf’s notion of “provisional adjudication” and Neal Kumar Katyal’s concept of “advicegiving,” which occurs “‘when judges recommend but do not mandate, a particular course of action based on a rule or principal in a judicial case or controversy’” (p.55, quoting Katyal 1998).  According to the authors, Katyal’s conception of advice giving “combines the impact-limiting and democracy promoting functions” of judicial minimalism (p.55). 

What Peters and Devins fail to acknowledge is that Bickel’s procedural deference is perhaps more satisfactory from a jurisprudential perspective because it is principled avoidance specifically grounded in notions of  judicial authority embodied in the “case and controversy” language of Article III.  Once judges enter the thicket of making substantive decisions regarding contested constitutional issues, they become subject to legitimate arguments about their authority and capacity to choose among competing politicized conceptions of rights – even when those choices are narrowly construed.  Indeed, shallow, superficial opinion writing that acknowledges competing arguments tend to highlight this difficulty.  In this respect “substantive” avoidance can look more like judicial buck passing or “strategic” avoidance on intractable constitutional questions where Bickel would argue the Court has a duty to make principled judgments based on its unique capacity for principled deliberation.

This problem with substantive deference is illustrated by an example Peters and Devins provide.  Specifically they make the rather controversial statement that although the “undue burden” compromise struck in PLANNED PARENTHOOD v. CASEY (1992) was completely unsatisfactory to proponents on either side of the abortion debate, “there [was] no realistic alternative to CASEY’s balancing act” given the current political climate (p.62). One could argue that in 1954 the Court was in a similar political environment regarding contested conceptions of equal protection.  What if the Court had come up with an “undue burden” standard with regard to segregation?  Would this have been acceptable – even as an “intermediate” solution to the problem? [*130]  I think not (although, I suppose, others could disagree).

The point is, there must be some role for principled absolutism in constitutional decision making.  Otherwise the very notion of individual rights becomes illusory. Bickel argues that, as long as there are democratic ways to revisit Supreme Court decision making via the amendment process, we can be secure in the notion that we can change things if the Court gets them horribly wrong.  Admittedly this is an arduous mechanism, but democratic checks on judicial review do exist, and, as several of the contributors in this volume point out, for Bickel this is fundamentally important.  In the end I would argue that, if the consensus among legal scholars is that Bickel’s jurisprudential approach is unsatisfactory, that’s fair; but I am not convinced the contemporary theories discussed in this volume are without their own set of significant shortcomings.

Thus far, I have discussed aspects of the book as they relate to interpretive legal theory. I would be remiss if I did not don my political science “cap” to mention essays in this volume that should be of particular interest to political scientists interested in other aspects of constitutionalism regarding the exercise of judicial review.  In particular, several essays stand out in this respect. The first, by David M. Golove, is primarily interested in the notion of “consent” in democratic society.  Specifically he explores whether it is a static or dynamic construct by contrasting what he characterizes as Bickel’s notion of “ongoing consent” with Bruce Ackerman’s arguments about more static “constitutional moments” in history.   He argues these conceptions have vastly different implications for whether the Court is properly viewed as a contemporary (and sometimes) forward looking leader in constitutional interpretation, or a retrospective institution primarily charged with preserving principles agreed upon during the last critical “moment” in our history.

A second essay that should be of interest to political scientists is Keith E. Whittington’s, “Constitutional Theory and The Faces of Power.”  Like Peretti, Whittington argues that there has perhaps been too much focus on the “countermajoritarian” aspect of Bickel’s theory and suggests theorizing about other ways the constitution structures political experience.  Particularly, he argues we should pay more attention to ways the constitution influences the representation of interests, affects notions of appropriate political strategy, and shapes political identities in our democratic system.  Clearly this is interesting but rather abstract stuff.  It could lend itself, however, to more concrete definition (and perhaps operationalization) if political scientists are willing to take up the sort of inquiry Whittington suggests.

Terri Peretti’s essay is perhaps the most overtly critical of Bickel’s theory in the volume.  Citing the last 50 years of empirical research on the consistency of legislation and Supreme Court decision making with public opinion, she argues that Bickel’s central argument about the dangers of countermajoritarianism are based on flawed assumptions.  Basically, [*131] Peretti argues that legislation does not always represent majority preferences, citing research that shows legislation is constant with public opinion “roughly 55 to 65 percent of the time” (p.127) and Supreme Court decisions are not always countermajoritarian. 

While Peretti’s injection of empiricism into the realm of constitutional theory is certainly refreshing, the critiques she raises in this chapter are arguably overdrawn and a bit unfair.  First, much of the evidence she cites about the consistency of the Court’s decision making with public sentiment is from research conducted well after Bickel wrote his seminal book.  Second, this line of research is necessarily selective, investigating only political issues for which there are available public opinion data, and thus, may tend to underestimate the extent to which public opinion comports with representative policy-making.  Finally, one could argue, as Ward’s essay implies, that Peretti’s issue-specific analysis fundamentally mischaracterizes the countermajoritarian difficulty about which Bickel was talking. According to Ward, Bickel was not as concerned with the Court deviating from popular will in particular cases, as he was with the potential detrimental effect of the unrestrained exercise of judicial authority for the legitimacy of the system as a whole.  Viewed in this light Peretti’s empirical critique seems somewhat off-point.

Finally, I feel some obligation to mention the 2000 pound gorilla legal theorists have been so adept at ignoring in thinking about constitutional decision making.  For years interpretive legal theory has evolved by scholars touting schools of interpretation that justify the outcomes in seminal decisions like BROWN and refute those in infamous decisions such as PLESSY v. FERGUSON (1896) and LOCKNER v. NEW YORK (1905).  The merit of a particular interpretive approach is judged by its ability to justify widely acknowledged desirable outcomes.  Stated simply, constitutional theory evolves “as if” there were some consistent interpretive approach that would yield such desirable outcomes. 

Of course, we, as political scientists, know better; often the outcome in constitutional cases has more to do with the mix of preferences of the justices on the Court then their commitment to any interpretive principle.  Constitutional legal theory has completely failed to consider a half century of empirical research on the influence of ideological preferences on Supreme Court decision making.  That being said, I would argue this is not entirely a bad thing.  Interpretive legal theory covers the normative as well as empirical ground; it is properly concerned with how decisions should be made as well as how they have been made at critical junctures in our history. But perhaps the time has come for political scientists to take a more active role in the debate and consider the democratic implications of how judges actually make decisions in a broader theoretical context.  Perhaps we should take a cue from Bickel and think about reassessing the role of the Court in light of what we, as a discipline, understand about how judges actually exercise their substantial authority. [*132]

As an assessment of current legal theory about the state of thought concerning the exercise of judicial review in our democratic system, this short volume is packed with very serious and important arguments.  I strongly suggest political scientists pick it up, but read it critically, and judge for themselves whether it is time to get rid of that copy of Bickel’s book that has, after all, been collecting dust on the self.  Alternatively, it could be a good time to pick it up, brush it off, and think about Bickel’s relevance in light of more recent ideas and what we, as a discipline, have to contribute to the debate.

REFERENCES:

Bickel, Alexander.  1962. THE LEAST DANGEROUS BRANCH.  Indianapolis, IN: Bobbs-Merrill.

Katyal, Neal Kumar.  1998. “Judges as Advice Givers.”  50 STANFORD LAW REVIEW 1709.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

LOCKNER v. NEW YORK, 198 U.S. 45 (1905).

PLANNED PARENHOOD v. CASEY, 505 U.S. 833 (1992).

PLESSY v. FERGUSON 163 U.S. 537 (1896).

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© Copyright 2006 by the author, Eileen Braman.