The Complex Legacy of Alexander Bickel

Perhaps folks here will have seen Adam White's fine essay on Justice Alito.  Adam focuses on Justice Alito's recent and emerging free speech jurisprudence, and along the way, he notes that Justice Alito has referred to Alexander Bickel as a strong influence on his views, particularly in those writings where Bickel emphasizes judicial restraint and the passive virtues.  I've always found Bickel admirably difficult to pin down -- I think easy descriptions of him as a conservative or liberal are mistaken.  For at least the early part of his career (including that part where he authored The Least Dangerous Branch), he was a committed political liberal.  On the other hand, there are strains of conservatism that permeate his thought, particularly as he became older, though it is not the currently predominant strain of legal conservatism.

Take a look, for example, at this interesting exchange, "On Pornography," from 1971 (toward the end of Bickel's life) in The Public Interest (this is when Daniel Bell was heavily involved with PI, before it moved rightward).  The issue is framed by two lead essays by Walter Berns and James Q. Wilson, with shorter "concurring and dissenting opinions" by Stanley Kauffmann, Wilson Carey McWilliams, Marshall Cohen, and Bickel.

Bickel's piece is in some ways a reaction to Berns's, which is itself something of a defense of the idea that it is part of good government, not to "eradicate vice," but to "make vice difficult" -- to encourage its being covert and a matter of shamefulness rather than pride.  (14)  But of even greater interest, I thought, was Berns's claim that there is "a connection between self-restraint and shame, and therefore a connection between shame and self-government or democracy."  (13) 

That's an argument that might perhaps have appealed to Bickel, champion of judicial self-restraint.  And, in fact, Bickel's reaction piece, though ultimately distancing itself from Berns's view, is rather ambivalent about the value of limitless free speech:

Never mind whether books get girls pregnant, or whether sexy or violent movies turn men to crime.  Assume that they do not, or that, at any rate, there are plenty of other efficient causes of pregnancy and crime.  Assume further that we must protect privacy, that government, therefore, properly has no business punishing anyone for amusing himself obscenely in his home, and must ignore the means by which he may have obtained his obscene materials, if all it knows is that he uses them at home; assume, in other words, that the Supreme Court was right in Stanley v. Georgia in 1969 when it held: "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home.  If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may not read or what films he may not watch.

Take these assumptions, and still you are left with at least one problem of large proportions.  It concerns the tone of society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future . . . .  [I]f [a person] demands a right to obtain the books and pictures he wants in the market and to foregather in public places -- discreet, if you will, but accessible to all -- with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies.  Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.  (26)

Nevertheless, Bickel says, this unavoidable "impingement" upon the "mode and quality of life" is something which, for the sake of avoiding a tyrannical state, we all must generally (in the main) tolerate -- "to identify the problem of obscenity is to expose its intractability."  Yet Bickel concludes with this:

The short of it, then, is that its very existence and occasional but steady enforcement in aggravated cases for the sake of making itself visible, is the real and virtually sole purpose of a law against obscenity.  Its role is supportive, tentative, even provisional.  It walks a tight-rope, and runs high risks.  Every so often in some corner of the country, some idiot finds Chaucer obscene or the lower female leg indecent.  For this reason, the federal government itself, as Justice Harlan has long argued and as Chief Justice Burger agrees, should stay out of the business of censorship altogether, because its idiocies, when they occur, affect the whole country.  But the Supreme Court, while exercising procedural oversight, ought to let state and local governments run the risks if they wish.  For the stakes, as Berns shows, are high.  

Whatever one thinks of these passages, it seems to me that they are at a considerable distance from the tenor of the speech decisions of the Supreme Court's past term.  And they also suggest to me the mixed and modulated quality of Bickel's thought, one which contrasts with the more absolute view of the speech clause which is, I think, ascendant. 

At all events, have a look at the well-written and elegant essays from 40 years back in the PI (and thanks to Adam for the pointer).