Political Animal


September 27, 2012 5:23 PM The Supremes Return; Will They Have “October Surprise?”

By Ed Kilgore

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action in college admissions, maintained in 2003 on a tie-breaking vote from Justice O’Conner, who has since been replaced by Samuel Alito, a confirmed enemy of affirmative action in general.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 is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • RepublicanPointOfView on September 27, 2012 5:38 PM:

    It is disengenuous of you to accuse republicans of race baiting!

    Just because Mitt's campaign is based upon "n!gger, n!gger, n!gger, sp!c, sp!c, sp!c, muslim, muslim, muslim" does not mean we are engaging in race baiting.

    The truth is "The n!ggers are stealing white people's money, the sp!cs are stealing white people's jobs, and the muslims want to kill all white people".

    Vulture/Voucher in 2012
    Proving that two rights do make a wrong.

  • cmdicely on September 27, 2012 5:47 PM:

    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.

    That's a weird way of putting it. If the Court doesn't take it, then the uncertainty over same-sex marriage in California is put to rest. If the Court does take it, then the uncertainty in California is extended at least until the court issues a decision, and possibly through remand and further proceedings.

    Its possible -- though unlikely -- that the Supreme Court could end the national uncertainty by way of the California case (by taking it, and then deciding it in a sweeping manner), but it can't do anything for the California uncertainty but extend it by taking the case.

  • c u n d gulag on September 27, 2012 6:00 PM:

    It's going to be interesting to see the new dynamic, after the ACA decision.

    Wither Kennedy, and especially Roberts?
    With the Trilogy of Terror - Alito, Thomas, and Scalia, or with the Four Horseman of Reasonable Progress?

  • Hue and Cry on September 27, 2012 7:26 PM:

    I expect right wing circumspection and calculated distinct intention.

  • Amusing Alias on September 27, 2012 7:44 PM:

    The CV is that white people, especially white men, believe that they are more discriminated against than blacks in 2012 America. I'd like to see a regional break down on this. If this is just a belief among this group that is widely held mainly in the South, but only moderately felt in the rest of the country (like Obama loathing) this might put a different complexion on the President's approach to affirmative action.

  • Ronald on September 27, 2012 8:13 PM:

    I would have lost the over/under on when the Republicans decide to go full on racism.
    Heck, they've already tossed women away (by supporting Akin), wtf are they scared of in alienating anybody else by this point?
    It is what the Teapers have been wanting anyway, so yeah, I expect Mr. Romney et al to exploit the affirmative action 'dog whistle'.

    What I'm curious to know is how Roberts is gonna behave. He dropped a big ol' bomb on the right wing of the Court with the ACA ruling. I am doubting that (barring a voting issue which, if things keep going as they are (oh please oh please) Obama will run away with this and it won't matter) the Court is going to step in the middle of this particular dog fight.

    But then, I didn't think that Bush v Gore would ever happen, either.

  • rrk1 on September 27, 2012 9:25 PM:

    The troglodytes on the court won't want to reveal their intentions until after the election for fear of energizing the Democrats beforehand. That's my view. After Bush v. Gore in 2000, it's now clear the court's majority is as partisan and political as is the legislative branch. But I don't think there will be an October surprise from the court. The Rethug base is already energized. Any decision that appeals to them is likely to backfire.

    DOMA, same-sex marriage, voter ID laws, aren't going to be decided by November. Obama has to win by a clear majority to keep it away from the court. Otherwise all the hanky-panky of 2000 is going to be replayed. It's my worst nightmare.

  • maryQ on September 27, 2012 11:50 PM:

    And if the Supremes and/or Romney are stupid enough to lob a lazy softball on race-based affirmative action, thinking that they are sliding him a fast curve, he will smack it out of the park.

    Bring it on, b*tches.

  • Winston Smith on September 28, 2012 4:16 PM:

    If affirmative action is declared unconstitutional, will Justice Uncle Thomas resign?