Alex Bickel's law school and ours.

Author:Burt, Robert A.

One generation succeeds another almost without acknowledgment. Or so it seems in universities where students, who come and go recurrently, are always the same age and teachers scarcely notice that they alone are growing older.

This inclination to ignore the passage of time is especially strong in law schools and legal institutions generally. When my first-year students begin our Constitutional Law course with Marbury v. Madison,(1) as when the Supreme Court cites the authority of Marbury,(2) we all speak of the decision as vital, informative, and binding as if it had been decided only yesterday. And when, in the next breath, we criticize Marbury, identify its begged questions, and unmask its pretensions--the delight of every first-year Con. Law course--we are reciting a favorite folktale and entering into a great tradition. Thus Alex Bickel began his most important book, The Least Dangerous Branch, with Marbury on the first page followed on the second page by the assertion that "the opinion is very vulnerable" and citations to a continuous lineage of skeptical readers from "the late Judge Learned Hand," to Thomas Reed Powell, to Oliver Wendell Holmes, to James Bradley Thayer.(3)

This impulse to stress continuities between generations is the dominant perspective in constitutional law today. The contemporary dispute between the originalists (such as Judge Bork(4) and Justice Scalia(5)) and the interpreters (such as Ronald Dworkin(6) and Justice Brennan(7)) grows from the agreed premise of the importance and feasibility of linkages from one generation to the next. These disputants differ only in the techniques they recommend for accomplishing these linkages--strict loyalty to "original understanding" for Bork(8) versus the collaborative enterprise of writing a continuous "chain novel" in Dworkin's evocative image.(9) Notwithstanding these differences, the disputants share the same underlying vision of the generational connections that Alex Bickel invoked on the opening pages of his book: that the same cup passes from one generation to the next with scarcely a drop spilled.

But it is not true. Premature death disrupts this comforting cycle--as did Alex's death in 1974 just before his fiftieth birthday. And, even when our predecessors live their full biblical allotment, there are still sharp breaks from one generation to the next. It is easy to overlook these disjunctions when we discuss constitutional law and all of us--whether student or teacher, elderly judge or younger litigant--readily imagine that we are speaking to one another in the same terms because we cite the same cases and, indeed, meet in the same place at the same time. This casual deduction from the observed fact of conversational or locational contemporaneity is, however, misleading. The truth is that, although we come together in a common place, we are speaking to one another from different worlds, we are talking across generational lines.

The best illustration I can draw of this difference and its imperceptibility is from the occasion when I gave the lecture on which this Essay is based, marking my inauguration as the Yale Law School's third Alexander M. Bickel Professor of Law. I spoke in Room 127 to an audience of students, faculty, and other friends. A portrait of Alex Bickel dominates one wall in Room 127-a marvelous likeness that evokes his energy and dramatic presence. There was, however, another way that Alex was in that room, a way that was invisible to everyone, but very palpable to me.

When I was Alex's student, as a member of the Yale Law School Class of 1964, one of my courses with him met in Room 127. In those days, however, the room had a different configuration. It sloped from north to south and the podium was at the southern end. Room 127 was redesigned in the mid-1970's and it now inclines from east to west, with the podium at the western end. Thus, in one sense, the old Room 127 is gone, obliterated. But the subterranean structure of that old room still exists and exerts some influence on all of us.

The influence on me is obvious because the old room and Alex's presence as my teacher are still vividly in my mind. Although I can relate my memories to those who never knew Alex, or who never knew him as a teacher in the old Room 127, I cannot adequately convey the vibrancy and immediacy that he still has for me. Even when I try to conjure his presence, my listeners see only me standing at the western podium talking about Alex Bickel; I, however, see Alex standing at the southern podium talking to me. My listeners cannot fully comprehend me, nor can I comprehend myself, without understanding that Alex is still speaking to me as I am speaking to them, and that we are both talking across generations.

The metaphor can be extended from this spatial expression in Room 127 to the intellectual structure of constitutional law theory. We all know the great progression of constitutional law landmarks in this century: from Lochner(10) and its companion cases,(11) where the Supreme Court regularly invoked a substantive ideal of "liberty" to invalidate state and federal economic restrictions; to the 1940's, when the Court, in homage to the New Deal, overruled the Lochner line and bowed to majoritarian enactments(12) to Brown v. Board of Education,(13) where the Court withdrew its prior deference to Southern race segregation laws (embodied at the beginning of the Lochner era in Plessy v. Ferguson(14)); to Roe v. Wade,(15) where the Court invoked a substantive ideal of "privacy" to invalidate state abortion restrictions. It is possible to draw a consistent and logical order from this series of Court decisions to find a common pattern that seamlessly joins one generation to the next. But this harmonizing enterprise--the conventional effort of constitutional lawyering--does not give an adequate account of the inevitable force of generational differences in perspective. It is equally possible in retracing this series of landmark constitutional decisions to claim, for example, that Roe is fundamentally indistinguishable from Lochner, that both rulings were impositions of the Justices' subjective values masquerading as constitutional verities--"liberty" in Lochner, "privacy" in Roe--and that if the Court was correct in overruling Lochner, then it must also overrule Roe. This is a familiar claim today, and has recently attracted the votes of four Justices.(16) It is also possible to argue that the Supreme Court's decision in Brown is fundamentally indistinguishable from Lochner and that Brown therefore was wrongly decided--a position, now virtually eclipsed, that was taken in the 1950's not only by Southern white supremacists but by widely respected figures.(17)

I do not intend to resolve these claims. My goal is not to find consistency among the progression of these cases or in the succession from one generation of constitutional lawyers to the next. Nor is it my goal to establish some hierarchy of authority, to give preemptive force to one decision or to one generation's perspective over the others. I want instead to describe and to understand how legal reasoning that is widely persuasive in one era becomes less persuasive in another. I want to see what one generation can offer the next if each of us--elders and youngsters, teachers and students--adequately acknowledges that we speak to one another from different rooms, even though we appear to be in the same place at the same time.

Alex Bickel is an excellent exemplar for this exploration. Alex's distinctive vision framed the terms of debate in constitutional jurisprudence in the 1960's and beyond. His name is known by every student of constitutional law today. But as much as he is recognized, his ideas no longer have the same powerfully shaping impact on constitutional law debates that they had twenty-five years ago. The internal, logical coherence of his ideas has not changed. But the definition of what counts as a persuasive legal reason has changed from that time to this--not because the precedential force of one or another judicial decision has waned or been overruled, but because the underlying conception of the very nature of judicial authority has changed.

The core of Bickel's conception was expressed in a passage from his last completed manuscript, The Morality of Consent, which was published posthumously in 1975. In a chapter of the book specifically addressing judicial decision making, Alex made this observation:

[T]he general good is achieved by pragmatic trial and error--having

regard to principle, but not dogmatically bound to it in action--which

is the genius of democratic institutions.... A Court sensitive to [this

proposition] tends to attack problems at retail, in the smallest possible

compass, illuminating ultimate principles in the glare of its headlights,

as it were, but seldom speeding ahead to seize such principles and to

deploy them for the definitive, authoritative resolution of large social

and political issues.(18)

Bickel wrote this passage less than a year after the Supreme Court had decided Roe v. Wade--a decision that clearly transgressed Bickel's injunction by deploying an ultimate principle, "privacy" or "freedom of choice," in order to resolve the abortion issue definitively, authoritatively. Bickel, of course, was critical of Roe for this reason; but in the course of his criticism, almost as an aside, he stated that "[i]t is astonishing that only two [Justices (White and Rehnquist)] dissented from the Court's decision."(19) Twenty years later, in retrospect, we can see that Roe was at the edge of a generational shift. Bickel's astonishment was an early indication of this shift.

We can most clearly see this shift in the style of legal reasoning--in the underlying "feel" for what counts as a persuasive legal reason--by considering the way that contemporary supporters and opponents of Roe have approached the Supreme Court's 1965 decision in Griswold v...

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