Remember, it is the Supreme Court that is Expounding: The Least Dangerous Branch and Popular Constitutionalism

Abstract

This article undertakes critical analysis of the similarities between “popular constitutionalism” and The Least Dangerous Branch. It does so by focusing not on the book’s treatment of the counter-majoritarian problem but, rather, on the passive virtues discussion. In so doing it suggests that Alexander Bickel – at least, the Alexander Bickel who wrote The Least Dangerous Branch – was far more accepting of the US Supreme Court’s power of judicial review than the scholarly “obsession” (as it is sometimes referred to) with the counter-majoritarian problem might lead us to believe.