The Supremes Return; Will They Have “October Surprise?”

At The Atlantic today, Andrew Cohen has a brief preview of the upcoming session of the Supreme Court. A lot of his article revolves around the personal antagonisms that seemed to emerge strong during and after consideration of the Affordable Care Act case. But here’s what Cohen says about the Court’s caseload:

Alas, what’s on the docket today, even after the Court accepted six new cases this past Wednesday, is only about half of what the justices will decide between now and June. So previewing the Court term this year is a little like previewing a play that is only half written. Will this be a term like last term, one for the ages? It depends. It depends on how aggressive the justices are in reaching out to take big-ticket social cases.

We don’t yet know, for example, whether the justices will take the Proposition 8 case out of California to finally put to rest that state’s uncertainty with same-sex marriage. Nor do we yet know if the Court is going to take another look at the Voting Rights Act after a season marked by partisan discrimination over voter identification laws. And there is a possibility, with voting rights cases brewing in South Carolina, Pennsylvania, Ohio and elsewhere, that the Court may be dragged into an election case before the November election.

As I write today, there is only one transcendent case on the Court’s docket this term, and it comes up early, on October 10. In Fisher v. University of Texas at Austin, the Court’s conservatives are poised to finish off once and for all the concept of affirmative action in academia.

Cohen goes on to note the perilous constitutional condition of affirmative action in college admissions, maintained in 2003 on a tie-breaking vote from Justice O’Conner, who has since been replaced by Samuel Alito, a confirmed enemy of affirmative action in general.

But Political Animals want to know if oral arguments on this issue right in the middle of the stretch run of the election campaign could serve as something of an “October Surprise” for Republicans who may by that time have lost whatever remaining inhibitions they have about racially tinged attacks arguing that those people and their president are systematically looting the good virtuous white people of America. I certainly think they will do whatever they can to exploit the publicity over the case, and would not be surprised at all if Mitt Romney and/or debate moderators were to pointedly challenge Obama on this subject either before (on October 3) or after (on October 16) the Court’s oral arguments.

So get ready for some race-baiting nestled in the gauzy language of constitutional law!

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.