The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

F. Exercising Judgment

Alexander M. Bickel was born in Bucharest, Rumania, and educated at the City College of New York ( B.A., 1947) and Harvard Law School ( LL.B., 1949). He clerked for Supreme Court Justice Felix Frankfurter and served in a variety of government posts, including as staff member of the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary. Most widely known for his critical appraisals of the Warren Court, Bickel's publications include The Supreme Court and the Idea of Progress ( 1970) and The Morality of Consent ( 1975). In an earlier work, The Least Dangerous Branch: The Supreme Court at the Bar of Politics ( 1962), he expressed his worries about judicial overreaching in the famous desegregation case, Brown v. Board of Education ( 1954). The title of the following excerpt from this book is taken from a passage by Alexander Hamilton in the Federalist Papers: "The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have NEITHER FORCE NOR WILL, but merely judgment."

Ending an opinion, a few years ago, in which he held that government may not force disclosure of certain political associations from a university teacher in such a way as to inhibit his freedom to teach and to learn as he thinks fit, Mr. Justice Frankfurter said:

To be sure, this is a conclusion based on a judicial judgment in balancing two contending principles--the right of a citizen to political privacy, as protected by the Fourteenth Amendment, and the right of the State to self protection. And striking the balance implies the exercise of judgment. This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court. It must not be an exercise of whim or will. It must be an overriding judgment founded on something much deeper and more justifiable than personal preference. As far as it lies within human limitations, it must be an impersonal judgment. It must rest on fundamental presuppositions rooted in history to which widespread acceptance may fairly

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