In Federalist No. 78, Alexander Hamilton predicted that the Supreme Court would be “the least dangerous branch,” because, unlike Congress and the President, it lacked either the power of the purse or the power of the sword. Almost two centuries later, Yale Law Professor Alexander Mordecai Bickel, would question whether, in fact, the Court was the least dangerous branch. Bickel was writing in the wake of the Court’s 1954 decision in Brown v. Board of Education, which overruled Plessy v. Ferguson’s separate but equal doctrine. Although Brown affirmed principles of racial equality, in doing so, it went against majoritarian preferences in the South, prompting critics to object to the practice of judicial review as countermajoritarian and anti-democratic. While Bickel agreed that judicial review did suffer from what he called “the countermajoritarian difficulty” — the prospect of unelected judges overruling the actions of the democratically elected branches of government — he insisted that the Court could maintain its legitimacy — and avoid being viewed as the most dangerous branch — by deploying judicial review with restraint and prudence.
This Bickelian vision has guided the Court for at least two generations. In the face of shifting political winds, the Court has recognized its own limitations. Without the power to withhold or appropriate funds or to command the military, it has no way of compelling the public — and indeed, the other branches of government — to heed its pronouncements. Instead, in circular fashion, the Court’s legitimacy depends on the public and the other branches viewing the Court’s decisions as legitimate and guided by law, rather by politics and personal preferences.
With all of this in mind, it is no wonder that the Court’s public approval ratings have taken a beating over the last few weeks. As October Term 2021 came to an end, the Court levied one bombshell after another, laying waste to decades’ worth of precedent and laying a foundation for rethinking the basic structure of government. Hardly a model of judicial restraint.