By Gregory Curfman
Throughout its October 2021-2022 term, the Supreme Court has shown no evidence of judicial restraint, dispelling any remaining illusions that the judiciary is, in the words of Alexander Bickel and Alexander Hamilton, “The Least Dangerous Branch.”
Professor Bickel elaborates upon this formulation in his 1962 book on constitutional law and the Supreme Court, The Least Dangerous Branch, and in his preceding Harvard Law Review Foreword.
Bickel constructs his thesis of “the passive virtues,” which refers, in short, to the concept of judicial restraint. These passive virtues, he believes, are a guidepost for a principled Supreme Court. He cautions that it is wise for the court to decline, on occasion, to exercise the power to grant certiorari and undertake judicial review. Bickel underscores the distinction between expediency and principle. While national exigencies may require the political branches of government to act with expediency, Bickel counsels that the court is able to take more time in decision making and reserve its authority for deciding issues of great long-term import to American society.
Bickel elaborates on this idea in a later book, The Supreme Court and the Idea of Progress, in which he impels the court to rely on “a more faithful adherence to the method of analytical reasoning, and a less confident reliance on the intuitive capacity to identify the course of progress.” This Supreme Court’s justices, however, have cast aside the passive virtues espoused by Professor Bickel and instead are pursuing an aggressive agenda to re-shape many aspects of American society.
In Vega v. Tekoh, for example, the court devitalized the constitutional right against self-compelled incrimination enshrined over a half-decade ago in Miranda v. Arizona. As a result of the court’s opinion in Vega, the government may freely violate individuals’ Miranda rights without the threat of civil liability.
In two pivotal cases involving freedom of religion, the court probed the tension between the Establishment and Free Exercise Clauses of the First Amendment. In Carson v. Makin, the Court struck down a Maine law prohibiting the use of public funds to subsidize religious schools, and in Kennedy v. Bremerton School District, the Court ruled in favor of a school football coach who was fired for conducting prayers on the 50-yard line after games. In both cases, the Court dismissed arguments claiming violations of the Establishment Clause, effectively eliminating much of the constitutional significance of the clause and virtually overruling the Lemon test for Establishment Clause violations.
In a critical case for the environment and the health of American society, the court placed tight restrictions on the authority of the Environmental Protection Agency to regulate power plant emissions of greenhouse gases. The court’s opinion in West Virginia v. EPA goes much further than previous courts in limiting the agency’s ability to protect the environment amid the mounting effects of climate change. Not only that, but the court’s legal reasoning in the case, based on the application of the “major questions doctrine,” will provide the court with a tool to severely weaken the regulatory authority of other federal agencies in future cases involving the administrative state that may come before the court.
In New York State Rifle & Pistol Association v. Bruen, the court extended the Second Amendment to protect a right for individuals to carry concealed firearms outside the home for self-defense. This opinion, the first time in over a decade that the court has reviewed a firearm case, will have telling consequences for public health and safety.
And there is Dobbs v. Whole Women’s Health Organization, in which the court set aside a 49-year precedent protecting a constitutional right to abortion, despite the established reliance of many thousands of women on the availability of the procedure to promote their health and welfare.
In a robust demonstration that this court gave no consideration to Alexander Bickel’s concept of passive virtues, all these sweeping opinions were announced within just days of each other. And there is little evidence that the court will not continue in this vein. For the October 2022-2023 term, the court is already scheduled to review cases involving the independent state legislature concept, which may have determinative impact on the 2024 presidential election, and affirmative action in higher education, which will decide if an applicant’s race may — or may not — be considered as a factor in decisions regarding university admissions. The outcome of the affirmative action case will have a critical effect on the future composition of the health care workforce.
In his contribution to the 2012 Alexander Bickel Symposium, organized on the occasion of the 50th anniversary of the publication of The Least Dangerous Branch, Professor Sanford Levinson wrote:
“…what one finds among all of the Justices, whatever may be their disagreements on the substantive issues, is a remarkable insouciance regarding the Bickelian ‘passive virtues.’ Each and every one of them is more than happy to intervene quite extensively in the state or national political process.”
Although Professor Levinson wrote this passage in 2012, it is surely just as true — if not more so — today.
Those who agree with the court’s aggressive stance may believe that this is a way to better promote ordered liberty. On the other hand, those who favor a more cautious approach to ruling on such momentous issues may counter that the court can no longer be considered “The Least Dangerous Branch,” but instead has transformed itself into “The Most Dangerous Branch.”
Gregory Curfman, M.D. is the Senior Advisor and Physician Scholar in Residence for the Solomon Center for Health Law and Policy at Yale Law School. He is also the Deputy Editor of JAMA.
