Supreme Court cases could stir 2012 race

 By JOSH GERSTEIN

As the presidential race heads into the home stretch, the Supreme Court is poised to wade into a series of contentious issues that neither President Barack Obama nor Mitt Romney seems eager to discuss.

The justices begin their next term on Monday. Smack in the middle of the presidential debates next month, they’re scheduled to take up the racially polarizing question of affirmative action. Around the same time, the court could announce that it’s jumping into the fray over same-sex marriage.

And just eight days before voters head the polls, the justices will hear their first case relating to the federal government’s so-called terrorist surveillance program that allows tapping phones and email communications as part of the war on terror.

None of these subjects come up often this year on the campaign trail — and all are topics the candidates have reasons to avoid. Justices aren’t likely to rule on any of them before the election. But after the historic, 5-4 decision last term upholding the crux of Obama’s signature health law, the high court’s docket could once again reverberate in the presidential race.

The case on the University of Texas’s affirmative action program, set to be argued Oct. 10, could resurrect an issue that has slipped off the national political radar for more than a decade. The first presidential debate, on domestic issues, takes place exactly one week before that. The vice presidential debate is Oct. 11.

“I’ve got to believe at this point in the campaign neither the president or Governor Romney is going to want to give a quote on any of this,” said Richard Taylor, a business diversity advocate and former Massachusetts transportation secretary under Romney. “If I was preparing either candidate for the debate, this would be on the checklist, … but I don’t think either campaign will be anxious to talk about it.”

In court briefs, the Obama administration has backed the University of Texas’s right to run its affirmative action program. It’s being challenged by Abigail Fisher, a white undergraduate applicant who was denied admission. But Obama aides have a history of being skittish about getting publicly enmeshed in debates over race — and education-related affirmative action in particular.

A federal government policy statement on the use of race in education languished in protracted interagency debates until last December.

“It took three long years to pull that policy out of the Obama administration. It was only after we pestered and cajoled them that they finally got it out,” John Brittain, a civil rights activist and law professor at the University of the District of Columbia, said in an interview soon after the document was released. “The administration had a paralysis of analysis. …. Overall, the Obama administration just has a reluctance to take on race and equality, and when they do so everything is so carefully sanitized and scrubbed to make sure it’s the least offensive thing possible.”

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