The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power

In his celebrated "Foreword" to the 1961 Harvard Law Review, Alexander Bickel coined the expression "passive virtues" to refer to certain jurisdictional doctrines or judicial "techniques" for "withholding ultimate constitutional judgment."tWarren Court Justices could dodge dangerous political altercations, Felix Frankfurter's former clerk declared, by making greater use of such devices as denials of certiorari, mootness, ripeness, desuetude, and statutory interpretation when they were confronted with seemingly intractable constitutional controversies.Bickel urged the use of these "passive virtues" for both normative and pragmatic reasons.Federal Justices should hesitate before invalidating the policies preferred by the people's elected representatives, he insisted, because judicial review was "a deviant institution in a democratic society."2Moreover, Bickel thought that prudent Justices rationed judicial rulings on constitutional matters in order to protect the Court's scarce political capital.Too many controversial decisions would expose "the inner vulnerability of an institution which is electorally irresponsible and has no earth to draw strength from."3This need to preserve judicial power justified certain deviations from otherwise binding canons of legal interpretation.In Bickel's view, Justices could strive for convenient results rather than doctrinal consistency only when they chose to avoid making constitutional decisions."The techniques and allied devices for staying the Court's hand," he concluded, "cannot themselves be principled in the Assistant Professor of Government, University of Maryland.Thanks to Wayne