Justice Kennedy, Alex Bickel, and the Separation of Powers

Over at SCOTUSblog, there's a terrific symposium underway to celebrate the fiftieth anniversary of The Least Dangerous Branch, Alex Bickel's seminal work on the Supreme Court and judicial review. My own contribution thereto--"The Passive Virtues as Means, Not Ends"--picks up where some of my prior writing has left off, and uses the past decade's detainee litigation as a lens through which to see the difference between Bickel's understanding of judicial power and that which we might most commonly associate today with Justice Kennedy. To the extent that the Court's (or, at least, Justice Kennedy's) primary agenda in the detainee cases over the past decade has been the preservation of judicial power as such, the essay suggests ways in which this mentality fundamentally diverges from Bickel's (itself enigmatic) view, and from more common understandings of the general purposes behind the separation of powers--as means to an end, rather than an end unto itself.