“My View” from the Oct. 1, 2012, edition of “Viewpoint with Eliot Spitzer.”
The Supreme Court starts a new term today, beginning a year that will perhaps force it to resolve issues as diverse as the constitutionality of affirmative action, same-sex marriage and a range of Fourth Amendment issues that have percolated up through the criminal justice system.
All of which reminds us that five is the most powerful number in the nation. Five votes on the Supreme Court can pick a president — recall Bush v. Gore; redefine our constitutional rights — think of Citizens United; and determine the constitutionality of a statute — think of the decision relating to the health care act last June.
Maybe this is good news, because the court over the past few years has proven to be one of the last refuges of decision making, as Congress and the executive branches have proven themselves too often mired in gridlock and avoidance behavior that typify so many institutions.
On the other hand, the old mythology that the Supreme Court can depend upon a neutral analysis of legal principles to resolve these tough issues is more and more suspect. The court itself has been mired in what often seems to be little more than ideological and partisan bickering — witness the acid tone of the four conservative justices in their dissent in the health care case.
This partisanship — and what I view to be the intellectual gamesmanship of those who erect false interpretive facades to justify outcome-oriented reasoning — detracts from the historic role of our final and most august deliberative body.
As one who wants to believe in the majesty of the law, I — and all of us — must acknowledge that the court itself has always been little more than a reflection of the time in which it serves, having in different eras: the 1870s, been grossly protective of corporate power and trusts; the early 1900s, hostile to any form of collective action by workers; only in the 1950s blazing a trail for integration and recognition that separate is inherently unequal; in the 1960s opening new vistas of civil rights for individuals; and now, like much of the nation, polarized and often riven with disaffection, while it tends toward what is viewed as a conservative worldview.
The court over its history has given us both euphoric moments of progress and unfortunate stagnation that reinforced a status quo that desperately needed shaking. The term ahead will probably be no different.
But just to be clear: Here’s to hoping that Justices Breyer, Ginsburg, Sotomayor and Kagan can find the fifth vote they need on the critical cases to move us forward, not backward.
That’s “My View.”