The justices begin their next term on Monday. | REUTERS Supreme Court cases could stir race

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.”

There’s almost no chance that Romney would take a strong stance against affirmative action, according to Stuart Taylor, a veteran legal commentator and author of a new book on the policy.

“I think it will not happen,” said Taylor, who co-wrote “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.” “No major national political figure has attacked affirmative action publicly since 1996 or before. It’s kind of remarkable. The Republicans who during the ’90s for a while were seeing some political profit in attacking affirmative action given the polls, don’t do it anymore.”

But the political class’s near silence on affirmative action in recent years hardly means the policy is in the clear. In fact, Taylor, who filed an amicus brief against the Texas program, says the court looks ready to bring down the curtain on racial preferences.

“Fisher is a good bet to become the most important affirmative action case ever,” Taylor said Thursday at a forum sponsored by the conservative Federalist Society.

Obama’s official stand on most of the major cases going before the court is on record, since the Justice Department usually files a brief or statement containing its views. The Romney campaign did not respond to a request for comment for this story.

It’s unclear just which case or cases will be the vehicle for the court to consider same-sex marriage. But legal experts say it’s a near certainty the court will consider the constitutionality of the ban on federal benefits for same-sex spouses, known as the Defense of Marriage Act or DOMA. In May, a federal appeals court based in Boston ruled the key part of the law unconstitutional. The justices almost always take cases in which lower courts struck down an act of Congress.

And if the high court wants to really take a deep dive into the issue, it could agree to take up the constitutionality of California’s Proposition 8, which banned gay marriage. A federal appeals court based in San Francisco ruled the ban unconstitutional in February. That case could resolve the question of whether there’s a federal constitutional right to same-sex marriage, though the appeals court sought to resolve it on narrower grounds.

“I think [the justices] have to take DOMA. I think Prop. 8 is probably a toss up,” said Robert Alt of the conservative Heritage Foundation. “Should the court grant review in the Prop. 8 case or one of the DOMA cases, that might be a sufficient news hook that it might get injected into the campaign, whether the candidates particularly want to talk about it or not.”

After Obama announced in May that he’d dropped his 2008 campaign stance against same-sex marriage, Romney cautiously reiterated his opposition to the idea.

“My view is that marriage itself is a relationship between a man and a woman, and that’s my own preference. I know other people have differing views. This is a very tender and sensitive topic as are many social issues, but I have the same view that I’ve had since running for office,” Romney said, while suggesting states could give same-sex partners many of the benefits of marriage.

However, same-sex marriage is not a subject that the GOP presidential nominee routinely mentions in his stump speeches. And the Republican Party as a whole seems to have toned down its rhetoric on gay issues as opinion polls show Americans, and particularly young people, swinging further in favor of legalizing same-sex unions.

At the Democratic convention, there were high-profile, pro-gay-rights messages. Obama referenced the repeal of the ban on gays in the military, and first lady Michelle Obama said in her speech that her husband wants everyone in the U.S. to be able to pursue the American dream “no matter … who we love.”

A convention video showing same-sex couples and a speech by the son of a lesbian couple from Iowa were warmly received by delegates, but played out well before prime-time television audiences tuned in.

Still, a former adviser to President Bill Clinton on gay and lesbian issues, Richard Socarides, said the convention showed that Obama and his advisers are less and less concerned that embracing gay rights has a political downside.

“Even I was amazed at how much they were willing to push the positioning of the Democratic Party as a champion of gay rights,” Socarides said.

But he said the limitations of Obama’s position could become clearer if the president is pressed on the court cases over same-sex marriage.

“I do think the president, if asked at a debate if he thinks there’s a federal constitutional right to same-sex marriage, will continue to give the slightly nuanced answer he has given before: that he personally supports it, and he thinks we ought to move towards that kind recognition of same sex couples, but he stops short of believing there is a federal constitutional right enforceable in all 50 states,” Socarides said. “In the context of a debate, 30-something days out pre-election, [his advisers] are not going to want him saying we should have same-sex marriage in all 50 states tomorrow.”

Talk of the terrorist surveillance program set for oral arguments on Oct. 31 would offer Romney the opportunity to reinforce a tough line against terrorism but gives the GOP nominee no particular political opening. The program being challenged by journalists and human rights activists is one Obama voted to authorize as a senator in 2008 and has carried out as president.

“This is one where [Obama] is not likely to get attacked by Romney, but it’s probably not a case the president would like to talk about too much with his supporters,” Alt said. “It goes to the fact that in a number of cases he has defended Bush administration policies he either attacked or his supporters rhetorically attacked in 2008.”

Many court watchers think the justices are also likely to delve into another race-focused issue this term: whether a key provision of the Voting Rights Act is constitutional.

Civil rights groups and the Obama administration say the provision — which requires jurisdictions in most or all of nine states to get pre-approval for changes to voting procedures and locations — is critical to preserving the voting rights of minorities.

Critics contend the provision is burdensome and the list of affected states no longer corresponds with any particular threat to voting by African Americans or Latinos.

An announcement that the court might undo a key part of the landmark 1965 law would stir up civil rights activists, but people following the still-under-the-radar issue closely seem almost certain to vote regardless of whether the court puts the law in the crosshairs.

It is, however, a subject Obama might be more willing to discuss because he could use it to rail against GOP-led voter ID laws that Democrats say will make it harder for minorities and young people to cast ballots.

Several experts said the court-related question Obama and Romney are most likely to get at the debates is not about the upcoming cases but about the blockbuster one decided in June, narrowly upholding the individual mandate in the health care law. The first debate Wednesday is scheduled to include a segment on health care.

Discussion of that ruling could trigger a debate about the kinds of justices each candidate would name to the court, which could face several more vacancies in the coming term, said Tom Goldstein, a Supreme Court litigator and founder of Scotusblog.

“The only case that’s gotten onto the radar of the broader public would be health care,” Goldstein said at the Federalist forum. “Health care is the only thing that really resonates.”