At The Weekly Standard, Adam J. White has a fascinating profile of Supreme Court Justice Samuel Alito. According to White, Alito should be considered the “last heir” to Yale University legal scholar Alexander Bickel, “a Burkean conservative whose work was largely overshadowed by the emergence of modern ‘Originalist’ jurisprudence.” Here’s how White sums up Bickel’s legal approach:
Born of Jewish-Romanian immigrants, Bickel graduated summa cum laude from Harvard Law School, clerked for Justice Felix Frankfurter, and joined the Yale faculty in 1956. But he rose to prominence with the publication of his second book, The Least Dangerous Branch. In that volume, which drew its name from Alexander Hamilton’s Federalist 78, Bickel reassessed the Court’s constitutional role in the aftermath of Brown v. Board of Education’s then-controversial school desegregation order. Because the Court is a counter-majoritarian force in American politics, he argued, the Court must exercise “the passive virtues,” deciding constitutional issues only when truly necessary. Instead of jumping headlong into heated political disputes, the Court’s justices, who (ideally) have “the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government,” should take care to act as “the pronouncer and guardian” of the nation’s “enduring values.”
White describes Bickel’s views as “utterly distinct from the Originalist theories that Robert Bork” and others made popular among legal conservatives. I’m not so sure about that. Like Bickel, Bork also consistently emphasized judicial restraint and letting the majority rule. So while there are important shades of difference between the two, calling their ideas “utterly distinct” goes too far.
But regardless, this is a very interesting profile of one of the Court’s key conservative members. Read it for yourself here.