Five weeks from today the seemingly interminable Presidential campaign will come to an end.  What's been remarkable about the campaign is what has not been addressed.  Foreign policy is rarely mentioned.  Of course, as Pres. Obama sarcastically commented, Romney and Ryan are "new" to the field, as neither has any foreign policy experience (though from one of his homes or sites of his bank accounts, Romney can probably see Russia), and on the very few occasions when he has ventured into the field, he's managed to offend one ally after the other.  Pres. Obama has a lot of experience, of course, and many successes, yet he too has failed to talk about foreign policy.  After over eleven years, Afghanistan has become the longest "war" by far in American history, but when was the last time you heard either candidate actually say the word 'Afghanistan'?  I put 'war' in quotation marks in the last sentence, because Congress has obviously not passed a Declaration of War against Afghanistan, since we're nation building there (when was the last time you heard that phrase in the campaign?).  What we have instead is the nebulous, limitless War on Terror, of which the Afghanistan venture is just one manifestation. 

So, too, the Republicans have been remarkably successful in taking off the table all the social issues that so dominated their primary. When was the last time anyone talked about the Tea Party?  Reproductive rights are barely mentioned, since the Republican platform position would drive away women voters, and the Democrats have given Romney a pass on this one too.  With the exception of something like the Todd Akin fiasco and Mitt's occasional attempts to shore up his conservative base (their hatred of Obama suggests they don't need much firing up), the social issues have just vanished.  Even the Affordable Care Act is barely discussed, in part, of course, because so much of what's gone into effect is popular and general support has been growing.  The Democrats made a half-hearted effort to co-opt and valorize the term Obamacare, but then did nothing with it.  Meanwhile, the new Republican proposal, if that word isn't too strong since Romney and Ryan have very different approaches, quietly dropped what they were so proud of: Ryan's voucher proposal, which was certain to alienate older voters.  Remember when the Republicans' slogan was "Repeal and Replace"?  The 'replace' part never gained traction, and now there is little discussion even of the 'repeal' argument.   

For a news junkie or even an occasional viewer of the network news, what the election really seems to be about is polls.  Since every state has at least one newspaper and two or three other organizations that conduct polls, there is an endless supply of polling data to occupy our attention.  Instead of substantive discussions of issues, we're subjected to daily rounds of who's up and who's down in state after state.  Since the first Presidential debate is tomorrow, there have even been inane and totally meaningless polls about who will "win."  The story du jour has been about each candidate lowering expectations.  Is that really news?  And when Chris Christie "goes off script" or "goes rogue" by saying he thinks Romney will win the debate, his comment is covered as if it were of national import. 

One extremely important topic that has also been virtually ignored is the power of the new President to determine the composition of the Supreme Court, which opened this year's session yesterday and thus did get a tiny bit of news coverage for 24 hours.  Three of the Justices are over 75.  Ruth Bader Ginsburg is the oldest, has had health problems, and has always looked frail.  If Obama is elected, she will probably retire at some point in his term, but his appointment wouldn't change the Court's make-up.  If Romney is elected, however, the question is whether she could or would continue for another four years.  A Romney replacement would significantly move the balance to the right.  The other two Justices who are over 75 are Scalia and Kennedy, the so-called "Swing Vote."  Neither would probably retire if Obama is re-elected (Scalia has said so explicitly).  With Romney, a replacement for Kennedy would likely be much more reliable for the right.  There is also interest as this term begins about whether Chief Justice Roberts, who so disappointed conservatives with his last-minute shift of vote to uphold the Affordable Care Act, will return to his previous consistently conservative position.  My money is that he will.  Like skydiving, voting with the left was a one-time thing he can check off his bucket list.  I have my own--probably crackpot--theory about why he changed his mind on Obamacare:  a few weeks before the decision, one of the national news magazines did a cover story about Kennedy, posing the question of whether he is the most powerful person in America.  I envision Roberts' being infuriated by the idea--it is the Roberts Court, after all--and deciding to put his stamp definitively on the Court.

The importance and power of the Court are illustrated by three issues that will almost certainly be addressed by the Court this year.  The first is marriage equality.  Although the cases are not yet officially on the docket, Justice Ginsburg made the unusual (for the tight-lipped Court) statement of saying that the Court would address the issue this session.  There are two tracks of cases that could come before the Court: the first cases are challenges to DOMA (the so-called Defense of Marriage Act); the second is the challenge to California's Proposition 8.  Many gay activists would prefer (or would have preferred depending on whether the Prop 8 challenge is actually taken on) that for two reasons the Prop 8 case not be brought this year.  The first reason is practical: the DOMA challenge is more likely to succeed.  What it does is strike down an act that seems on-the-face discriminatory and that interferes with what has traditionally been a matter of state law (a cause that should  be dear to conservative hearts).  Justice Kennedy would almost certainly be the swing vote in this case, and he has in the past two major decisions voted to uphold gay rights and strike down discriminatory laws.  The Prop 8 challenge, however, is more problematic since it would establish an affirmative right for same-sex marriage and may be less likely to prevail in the Court.  The other reason for the caution of some activists is that marriage equality is on the ballots of four states this November, and for the first time has a good chance of passing in one or more of the states.  For these LGBT advocates, marriage equality supported by voters, even though it may be more gradual in its implementation, would be better received than a Supreme Court dictate. 

The second important case is a challenge to section five of the Voting Rights Act.  Originally passed in 1965 and extended (by a Republican Congress) and signed by Pres. Bush in 2006, the challenged section requires stricter scrutiny of voting requirements and redistricting in certain states and some smaller units, mainly in the South, that have a history of discriminatory laws.  I remember well in the late 60s spending weekends in African-American neighborhoods in Oklahoma City and Tulsa going house to house, encouraging Black voter registration.  For someone from Iowa, a state that was 98% White, and from an undergraduate university that was equally pale, those weekends were eye-opening experiences.  The challenge to section five argues that the so much progress has been made that it's unncessary and unfair to subject these states to the burden of strict scrutiny--this despite all the voter suppression efforts of this election cycle and the flagrantly manipulative redistricting efforts (struck down by the courts) in Texas.

The third monumental case (and the first that the Court will actually hear, starting on October 10) is Abigail Fisher v. the University of Texas.  (Texas again!)  As this case may essentially end Affirmative Action, it is potentially the most discouraging of all.  The case is anomalous in two respects.  First, the law uses race very narrowly.  It was passed by the Texas legislature and signed by the Republican governor--neither bastions of liberal thought.  There are no qoutas or set-asides.  All that it provides is that in determining the last 20% of admissions, such factors as public service, school activities, race, etc., can be taken into account.  No numerical weight is automatically assigned to any of these factors.  Second, there is no evidence that Ms. Fisher would have been admitted even without such qualities being considered.  And she was admitted to another university and has graduated.  Thus, why isn't the case moot?   As we all learned in high school American history, the Court does not decide moot cases.  Or, to put it another way, this Court has defined "standing" (the necessary stake that one has in the case) very narrowly.  Why does Fisher still have standing?  At any rate, if even this extremely limited use of race isn't accepted, then Affirmative Action has been essentially gutted.

I would make two points that seem to me important.  The first is that the opponents of Affirmative Action always argue that only merit should count.  But 'merit' is not a perspicuous or self-evident concept.  Like all ideas, it occupies a contested space.  Does merit equal only SAT (or ACT) scores?  But all the studies show that those tests, whatever their intentions, are first, culturally biased, and second, predict nothing about academic performance except how well one does on the same kinds of tests.  Or does merit equal some combination of  SAT scores and gpa's?  But all high schools are clearly not equal, nor are all grades based on uniform standards.  If that's what merit is, universities wouldn't need admissions offices; there could be one algorithm into which all students' scores and grade points were plugged, and that would be that.  But isn't merit more capacious than that?  Can't schools consider other factors--and haven't they always done so?  Did George Bush get into Yale because of merit as narrowly defined?  Can a university reserve places for legacies?  The University of Texas has the largest athletic budget of any school in America.  Are all the football players admitted on the basis of their SAT scores?  Is outstanding musical ability not a factor that can be considered?  Which is more important for education, since I assume most Texans don't want to decimate the football team: racial diversity or a winning Longhorn team?  Merit is as contested--and always has been--as any other concept.

And that's my second point.  Has there ever been a university in America that didn't base admissions on qualities in addition to SAT scores and gpa's?  And why wouldn't they?  Among those considerations, diversity (of race, ethnicity, geographical origin and economic status) is, has been, and should be as important as athletic prowess or potential financial gifts.  Fisher v. the University of Texas risks replacing all the gains that Affirmative Action has accomplished with an impossibly narrow standard that will be ignored in every area but one: race.