In No. 78 of the Federalist Papers, Alexander Hamilton defended Article III of the Constitution, calling it “the least dangerous branch.” In his article, Hamilton assumed that the federal judiciary would be able to declare acts of Congress invalid:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[1]
Hamilton held a traditional view of the courts as interpreters of the law. In the course of that duty, where the plain meaning of a legislative act was contrary to the Constitution, the Constitution would be controlling.
In the famous case of Marbury v. Madison, Justice Marshall, speaking for the court, established the principle that the Supreme Court has the power to declare acts of Congress unconstitutional if they conflict with the Constitution. [2]Soon after Marbury, this power expanded to include acts of state courts. [3]
In The Least Dangerous Branch, legal philosopher and scholar Alexander Bickel challenged the limited views of Hamilton and Marbury, offering a different perspective. He views the federal courts as protectors of specific fundamental values embedded in the Constitution, as they emerge through the nation’s political history.[4]
He states his thesis as follows:
It is, as I have argued, decidedly the Court’s function to proclaim principled goals, including some that it foresees may be incapable of immediate, full attainment.[5]
Note that Bickel’s mid-Warren Court view of the Constitution and the role of the courts differs dramatically from that of Hamilton and Marshall. The Supreme Court is not an instrument by which the Constitution is interpreted based solely on its language, but rather a source of values that the Court interprets in accordance with contemporary ideas. In this view, the courts influence public opinion and sway it by their decisions.[6] In other words, Bickel views the Court as an essentially political institution restrained not by its role as an interpreter of the Constitution, but by specific prudential rules that prevent it from losing its moral authority.
The Least Dangerous Branch
Bickel understood that traditional review poses challenges in a democracy. The idea that unelected judges should have the power to make laws, interpret laws, or interpret the constitution in ways that effectively create legislation conflicts with democratic principles. He also recognized that his theory has implications for the court and its legitimacy. [7] The current situation shows that he was right—and that the theory he advocates requires significant revision.[8]
Hamilton and Marshall derived their notion of judicial duty to declare legislative acts contrary to the Constitution from the position of the Constitution as the “supreme law” and the courts’ duty as interpreters of the law. Bickel supports a view of the judicial process as endorsing or rejecting measures of the representative branches as compatible or incompatible with fundamental principles embodied in the Constitution, thereby legitimating or condemning governmental action based on a principled decision that politics alone cannot provide.[9] To do so without undermining its own authority, the Court must proceed with wisdom and prudence.
Passive Virtues
Bickel’s central thesis is supported by his examination of “the passive virtues,” which the court uses to justify giving itself a greater role with some degree of judicial restraint. The Court’s duty to defend “the enduring values of a society” is often best served through judicial inaction or what he called “passive virtues.” Unlike the other two branches of government, which generally address immediate issues, the Supreme Court can and should choose not to decide right away and wait for a more appropriate time to weigh in. [10]
These passive virtues mean that it is wise for the court sometimes to choose not to exercise its power to grant certiorari and to conduct judicial review using various techniques, such as its right to refuse to hear a case, to reject an appeal because it is not “ripe for appeal,” or because it involves political questions, and so on. Bickel highlights the difference between expediency and principle. He believes that the Court should act to uphold certain principles, but he rejects the idea that the Court should always do so, especially when it would be unwise to do so.
While national emergencies may require the political branches to act quickly, Bickel argues that the Court should generally take time in decision-making and reserve its authority for deciding issues of significant long-term importance to American society. Even before Marbury, the Court declined to issue advisory opinions or enter into the political process by making proclamations, except in deciding cases brought before it.[11] For the Court to take jurisdiction over a matter, the plaintiff must have standing to be heard, and there must be an actual case in controversy before the Court. The Supreme Court has also taken the view that it will not take jurisdiction over a matter that is not ripe for a decision by the court.[12]
These and other passive virtues encourage the Court to avoid unnecessary decisions and to limit those it makes carefully. Both liberal and conservative Courts have sometimes made rulings that harm the Court’s legitimacy. This is especially true when the Court chooses to rule on social or political issues that are typically handled by Congress or state legislatures. Finally, as with the gerrymandering cases, the Court should steer clear of “political questions” that the Constitution assigns to the legislative or administrative branches.
There are no simple solutions to the question of when the Court should act. It is a matter of wisdom and judicial prudence born of experience. As one commentator puts it:
If passivity was at times the best posture for the Court, as Bickel argued, how were the Justices to know when a case called for principled adjudication and when it called for “the techniques and allied devices for staying the Court’s hand”? To this question, Bickel’s answer was prudence. [13]
In other words, law is essentially prudential, and the decision of the Supreme Court to hear cases is essentially one of prudential judgment.
Judicial Prudence
Bickel came to believe that the Warren Court, in its later years, became too aggressive in using the law to push social change, including changes he personally supported. He felt that the court had not developed the virtue of practical wisdom, which would help it avoid becoming involved in politically sensitive issues. Bickel believed that the court was increasingly stepping into the realm of principle, harming its higher purpose.[14] Judicial imprudence is not a virtue in defending principles—especially on highly contested moral issues. What the Court did in Brown v. Board of Educationshould not serve as a model for engaging in every possible controversial social issue—a temptation the Warren Court occasionally fell into. [15] Bickel sought to ensure the Court’s practical prudence and protect it from overextension and flawed reasoning.
It is essential to recognize that legal prudence is not the opposite of principle; instead, it’s a thoughtful approach to applying core human values to real-world situations. Due to the complexity of human institutions and the unpredictability of human nature, a prudent person knows when to stand firm and when to be flexible. Sometimes judicial prudence requires patience and a willingness to wait for the right moment, recognizing that occasionally imperfect compromises and messy solutions are the best judges can do—since reality rarely aligns perfectly with human ideals. Prudence enables judges to protect Constitutional principles while accepting the limits of what can realistically be achieved. Bickel believes his practical approach generally works better than ideological political decisions based on abstract dogmas, which often result in flawed solutions.[16]
It should not surprise anyone that this is a sentiment with which I agree, with the caveat that prudence never loses sight of the moral or ethical principles underlying the law or the negative impact on the legitimacy of the judiciary of imprudent or merely superficially pragmatic decision-making. Much subsequent criticism of Bickel and his thesis emphasizes this point. It is never moral or prudent to base a failure to address an issue merely on pragmatic or political considerations.
Conclusion
As mentioned, in the years after Brown v. Board of Education, Bickel became increasingly concerned that the Warren Court was applying judicial review too aggressively and divisively. Bickel understood that the Supreme Court is a “counter-majoritarian” force in American politics. He recognized that the Court has a role in resisting the tendency of majorities and social consensus to act unjustly against certain groups. On the other hand, fostering social change is not the primary duty of the judicial system. The primary duty of the judiciary is to defend and explicate enduring values enshrined in the Constitution. Although many argue that Bickel did not fully reconcile judicial review with democratic principles, his contributions to understanding the limits and proper use of judicial power remain unquestionably important.
Copyright 2025, G. Christopher Scruggs, All Rights Reserved
[1] Hamilton, Federalist Papers, No. 78.
[2] Marbury v. Madison 5 US 1, Cranch 137 137 (1803)
[3] Fletcher v. Peck 10 US 87 (1809).
[4] Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962).
[5] Id, 141
[6] Id,140.
[7] Bickel understood that traditional review poses challenges in a democracy. The idea that unelected judges should have the power to make laws, interpret laws, or interpret the constitution in ways that effectively create legislation conflicts with democratic principles. He also recognized that his theory has implications for the court and its legitimacy. The current situation shows that he was right—and that the entire theory he advocates requires significant revision.
[8] Bickel can be seen as ushering in the end of “Legal Process Jurisprudence,” of which he was a major advocate. In recent years, his theory has been superseded on the left and the right by other theories. Nevertheless, his views are still relevant, and his work is one of the most read books in the field of jurisprudence.
[9] Herbert Wechsler, “Review of The Least Dangerous Branch: The Supreme Court at the Bar of Politics.” Alexander M. Bickel. Indianapolis; New York: Bobbs-Merrill Company, 1962. In the Yale Law Review, 1966 https://openyls.law.yale.edu/server/api/core/bitstreams/f22c144a-5495-4eb4-952c-d680050e291a/content (downloaded September 6, 2025).
[10] Yale Law School, “Alexander Bickel, who Defined Supreme Court Paradox, Gets Consideration” (November 7, 2024) https://law.yale.edu/yls-today/news/alexander-bickel-who-defined-supreme-court-paradox-gets-new-consideration (downloaded September 8, 2025).
[11] Least Dangerous Branch, 115.
[12] Id, 123.
[13] David, Wolitz, “Alexander Bickel and the Demise of Legal Process Jurisprudence” University of Tennessee College of Law Research Paper Series (June 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3531249 (downloaded September 9, 2025); See also, Alexander M. Bickel, The Supreme Court, 1960 Term, Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 40–42 (1961).
[14] Id, at 144.
[15] See, J Patrick White, “The Warren Court Under Attack: The Role of the Judiciary in a Democratic Society,” 19 Maryland Law Review 3(Summer 1959); “The Warren Court and Living Constitutionalism,” 10 Indiana Journal of Law 1 (2022).
[16] David, Wolitz, cited above at 144-145.