The Need for an Asian American Supreme Court Justice

Introduction

In her insightful Comment on Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina¹ (hereinafter SFFA cases), Dean Angela Onwuachi-Willig critiques Chief Justice Roberts’s majority opinion for its “simplistic understanding of race and racism.”² She interrogates the “doxa” — the “unexamined cultural beliefs” that structure the majority’s narrative on racial experiences.³ Onwuachi-Willig elucidates how Chief Justice Roberts accepts whiteness as a tacit norm and ignores the marginalization of people of color.⁴ She contrasts this with the “fuller” history of American racism brought forth by Justices Sotomayor and Jackson in their dissents.⁵ And she deftly adds to their counternarrative with her own multifaceted analysis, incorporating narrative theory, history, and social science.⁶

Nevertheless, one important aspect of this “fuller” history was missing throughout: the precarious positioning of Asian Americans.⁷ I make this observation as an Asian American academic — one who has written extensively about Asian Americans and affirmative action,⁸ sometimes in a very personal manner.⁹ We had an integral role in the cases, particularly in SFFA v. Harvard,¹⁰ which spotlighted its Asian American plaintiffs. But although five of the six opinions mentioned us,¹¹ their discussions lacked depth. The opinions did not situate Asian Americans within the broader U.S. racial landscape. They did not capture the complexity of Asian American identity. And they could not give voice to our experiences. What struck me as I read the opinions, and as I reflected on Onwuachi-Willig’s analysis, is the need for an Asian American Supreme Court Justice.

The majority opinion, along with the concurrences by Justice Thomas and Justice Gorsuch, did tell a story about us. But it was a cursory, flawed, and shortsighted narrative of Asian Americans as victims of affirmative action. And yet this narrative prevailed, not just legally but rhetorically, because no alternative was presented. Justice Jackson had recused herself in the Harvard case,¹² where Asian Americans were most prominent, so her commentary about us was inherently constrained. As a progressive voice, Justice Sotomayor was essentially triple-teamed and could devote only limited attention to Asian Americans. She gave good rebuttals to specific points, but these were isolated and incomplete. They did not gel effectively into a counternarrative.

When conveying their “fuller” history, Justices Sotomayor and Jackson understandably focused on Black Americans (and to an extent on Latina/os). They probably felt a duty to do so, as they are the voices on the Court for the most marginalized groups. They undertook an important endeavor, as Supreme Court dissents can influence the public sphere, shaping how future legal minds think about issues.¹³ Narratives are inevitably dictated by the experiences and understandings of the narrator, making representation all the more significant. But this is why, in the SFFA cases, the “fuller” history for Asian Americans was lost.¹⁴

My Response to Onwuachi-Willig aims to tell that “fuller” history, both to show how the victimhood narrative emerged and to pose a counternarrative — a story of Asian Americans not as victims of affirmative action, but as tools weaponized to dismantle it. While Onwuachi-Willig’s commentary focuses on the racialization of Black and Latina/o peoples and the “raceless” privilege of White people, I add Asian Americans to this explication of American racism. My counternarrative employs an alternative “narrative glue”: a different approach to “the way incidents and events are made to combine in a meaningful story.”¹⁵ And underlying my analysis is the view that an Asian American Justice could most effectively convey this counternarrative.

In Part I, I discuss the missing voice of Asian Americans in the SFFA opinions. I consider two questions: (1) What is this missing voice, given the diversity of views among Asian Americans? (2) Does the counternarrative I posit have to be told by an Asian American? Part II gives the historical and social context for understanding competing narratives about Asian Americans and admissions. It discusses the history leading up to the SFFA cases and the racial stereotypes that form the doxa for these competing narratives. Part III exposes the victimhood narrative. I illustrate how this narrative emerged from SFFA’s litigation strategy and how the majority and concurring opinions employed it. Part IV lays out the counternarrative: the weaponization of Asian Americans against affirmative action. I consider how an Asian American Justice would be best positioned to deliver many aspects of this counternarrative. The Conclusion looks forward, to emerging admissions controversies where the racial positioning of Asian Americans is key, and where an Asian American voice on the Supreme Court is needed.

I. The Missing Voice of Asian Americans

What exactly do I mean by the need for an Asian American Justice? In one sense it is a rhetorical device — a call to center Asian American identity in a case where we occupied such an important space. But there is tremendous diversity among Asian Americans, including differing views on affirmative action. Whenever the first Asian American Justice is appointed, they may well align with the Court’s conservative wing.

Nevertheless, my counternarrative is decidedly pro–affirmative action. It would be part of a dissenting opinion in the SFFA cases. One reason for this is my own view: I have long been an ardent defender of race-conscious policies. Beyond that, however, an Asian American Justice concurring with the majority would likely parrot the victimhood narrative. Perhaps this Justice might address additional issues or deviate from the majority’s reasoning in some way that specifically implicates Asian Americans.¹⁶ Nevertheless, the novelty here would pale in comparison to what a dissenting opinion would bring. For Asian Americans, the pro–affirmative action voice was the missing voice on the Court.

But must this voice come from an Asian American Justice? Could someone else convey the counternarraftive? There are Justices who have been effective in addressing relevant issues and advocating for groups they do not belong to. Justice Sotomayor’s opinions, including the one in the SFFA cases, have brought forth salient issues for Black Americans. Her dissent in Utah v. Strieff¹⁷ was dubbed a “Black Lives Matter manifesto.”¹⁸ Similarly, Justice Gorsuch has written opinions which illustrate his knowledge of Native American history and defense of Indigenous sovereignty.¹⁹ Perhaps a current Justice could do something similar for Asian Americans.

There are parts of my weaponization counternarrative that could be told effectively by a Justice who is not Asian American, if they have a nuanced knowledge of our history, identity, and experiences.²⁰ However, there are also parts of the counternarrative which I think require an Asian American voice speaking to us and for us. I discuss this throughout Part IV.

II. The Backdrop for Narratives About Asian Americans and Elite Admissions

Narratives often begin with history, establishing the backdrop for the stories they tell. In their dissents, Justices Sotomayor and Jackson analyzed the historical context for interpreting the Fourteenth Amendment and tied this to sociological data which highlighted current racial inequities.²¹ Justice Jackson also poignantly conveyed the plight of Black Americans through personal narratives of hypothetical applicants.²² As Onwuachi-Willig notes, their opinions established the salience of race in the past and present lives of Black and Latina/o Americans.²³

For Asian Americans, however, this backdrop was lacking. It was Justice Thomas who actually wrote the most about Asian American history. He referenced the Chinese Exclusion Act of 1882, the 1927 school segregation case of Gong Lum v. Rice,²⁴ and the internment of Japanese Americans during World War II.²⁵ All are important events, but Justice Thomas stopped there.²⁶ He ignored the more recent, complex history of Asian Americans that laid the foundation for the SFFA cases and the narratives told through them.²⁷ This history is intricately linked to racial stereotypes, as are the cases more generally. But while the majority, concurring, and dissenting opinions mentioned stereotypes, they said little of substance. Chief Justice Roberts, along with Justices Thomas and Gorsuch, merely contended that racial categories are themselves just stereotypes.²⁸ And although Justice Sotomayor’s dissent alluded to the “potent and dehumanizing stereotypes” that Asian Americans face,²⁹ she also did not elaborate.

The substance is especially important here. Onwuachi-Willig shows how racial stereotypes are part of the doxa that structures how narratives are created and understood.³⁰ Taken together and combined with a particular narrative glue, stereotypes give rise to complex racial ideologies.³¹ They can be used to exalt groups and to marginalize them, sometimes simultaneously.

The positioning of Asian Americans in admissions controversies is an exemplar of this process. In her racial triangulation framework, Professor Claire Jean Kim analyzes how Asian Americans are simultaneously valorized as hardworking achievers and ostracized as menacing foreigners, all to promote White supremacy.³² The “model minority” stereotype — the idea that Asian Americans excel academically more than other groups because of our cultural work ethic³³ — is key to our positioning. This stereotype became especially prominent after the Immigration and Nationality Act of 1965,³⁴ which facilitated greater immigration of scientists, engineers, and similar highly educated professionals.³⁵ The United States was then engaged in the Cold War, and it needed such professionals to compete technologically with the Soviet Union.³⁶ At the same time, Asian nations such as China and India had many educated professionals with few opportunities in their homelands.³⁷ The 1965 Act served the interests of both the U.S. government and these professionals. It resulted in a wave of educated Asian im­migrants,³⁸ many of whom had the social capital to prime them for success.³⁹ This wave of immigrants and their children became the high-achieving Asian Americans whose numbers have grown at elite institutions over the last fifty years.⁴⁰ Importantly, there are also many Asian immigrants and Asian Americans who do not fit this profile.⁴¹

Nevertheless, conservatives have employed the model minority stereotype to pit Asian Americans against Black, Latina/o, and Native Americans.⁴² They argue that because Asian Americans worked hard to overcome barriers, these other groups can also do it.⁴³ But this ignores all of our groups’ distinct histories and social positions. Highly educated, voluntary immigrants occupy a very different position in America’s social hierarchy than people whose ancestors came here forcibly on slave ships (many Black Americans), or who were incorporated through conquest (many Native Americans), or who came here without high levels of skill or education (many Latina/os).⁴⁴ Still, the model minority stereotype is exploited to undermine progressive policies such as affirmative action.⁴⁵ For the SFFA cases, it created a sympathetic context for the narrative of victimhood: hardworking, high-achieving Asian Americans rejected from elite universities in favor of undeserving applicants.

There is also a flipside to the model minority stereotype that SFFA exploited even more. While we are valorized as model minorities, Asian Americans are simultaneously ostracized as “perpetual foreigners” — more tied to our ancestral homelands than to the United States.⁴⁶ We are seen as interlopers in elite White spaces.⁴⁷ As high-achieving Asian American students became visible on elite campuses, there was a backlash in response to our presence.⁴⁸ Asian Americans became viewed as a “peril of the mind” — a threat to White dominance precisely because of our success.⁴⁹ In the early 1980s, White students who felt threatened labeled various campuses with epithets: Massachusetts Institute of Technology became “Made in Taiwan” and University of California, Los Angeles (UCLA) became “University of Caucasians Living Among Asians.”⁵⁰ Asian American students were seen as overly competitive students who raised grading curves.⁵¹

Some university faculty and administrators also made racist comments about the overrepresentation of Asian Americans. Brown’s admissions director allegedly stated that Brown could reduce its class size “by cutting the first ten Kims off the top of the list.”⁵² And at Princeton, a professor recalled an admissions committee discussion of a “clearly qualified Asian-American student” where one committee member stated “[w]e have enough of them” and another concurred that “[y]ou have to admit, there are a lot.”⁵³

In the mid-1980s, a study at Princeton also found that while Asian American applicants had higher grades and test scores than other groups, they were rated lower on personal characteristics.⁵⁴ Similarly, an investigation at Stanford found that unconscious biases in the evaluation of personality traits might work against Asian American ap­plicants.⁵⁵ Both of these studies concluded there was no intentional discrimination,⁵⁶ but their findings reflected another stereotype of Asian Americans: that we are passive and socially inept.⁵⁷ Over three decades later, the SFFA litigation would bring forth a similar controversy over Harvard’s ratings of personal characteristics.⁵⁸

In this context, suspicions arose that elite universities might be engaging in “negative action”: discrimination against Asian American applicants in favor of White applicants.⁵⁹ Asian American activists, including supporters of affirmative action, raised the issue of negative action in the media.⁶⁰ Some compared this alleged discrimination to the animus that Jewish students faced at elite universities in the early and mid-twentieth century.⁶¹ The Department of Education Office of Civil Rights (OCR) investigated allegations of negative action, finding that UCLA had discriminated against five students of Asian descent in 1987 and 1988.⁶² And while Harvard was cleared of discrimination, SFFA would later claim that the OCR investigation of Harvard was “roundly criticized.”⁶³

This history is significant for the SFFA cases, and distinguishing negative action from affirmative action is key. The latter refers to policies intended to increase presence of underrepresented groups, not to favor White Americans.⁶⁴ Nevertheless, in the 1990s, opponents of affirmative action blurred this distinction, as they began challenging race-conscious policies.⁶⁵ In 2003, twenty-five years after the Supreme Court’s decision in Regents of the University of California v. Bakke,⁶⁶ race-conscious admissions again reached the Court. The opinions in Gratz v. Bollinger⁶⁷ and Grutter v. Bollinger⁶⁸ did not discuss Asian Americans,⁶⁹ and neither did the majority opinions in Fisher v. University of Texas at Austin I⁷⁰ and II.⁷¹ However, Justice Alito’s dissent in Fisher II began to create a judicial narrative of Asian American victimhood.⁷² Justice Alito claimed that the University of Texas at Austin (UT) admissions policy discriminated against Asian Americans and found this “particularly troubling, in light of the long history of discrimination against Asian Americans, especially in education.”⁷³ He further contended that UT did not value Asian Americans’ contributions to diversity,⁷⁴ and he criticized the notion of Asian American as a category and identity⁷⁵ — portending another issue in the SFFA cases.⁷⁶

All of this laid the groundwork for SFFA’s strategy. The conflation of negative action and affirmative action culminated in the SFFA cases and undergirded the narrative of Asian American victimhood.

III. The Asian American Victimhood Narrative

The victimhood narrative began with SFFA’s “bait-and-switch” litigation strategy.⁷⁷ SFFA exploited the sympathies generated by alleged negative action against high-achieving Asian Americans.⁷⁸ It transferred these sympathies to its attack on affirmative action. The SFFA plaintiffs were anonymous, but at least one was an Asian American who was rejected by Harvard.⁷⁹ The first claim in SFFA’s complaint was solely one of negative action: that Harvard intentionally disfavored Asian Americans in comparison to White Americans.⁸⁰ This claim never had much chance of success, because Harvard denied intentional discrimination and SFFA had the high burden to prove it.⁸¹

Nevertheless, the first claim was the bait. SFFA showed that admitted Asian American applicants had higher academic credentials than admitted White applicants.⁸² It revealed the many facets of Harvard’s admissions process that did disfavor Asian Americans.⁸³ It selectively quoted stereotypical comments, and through statistical modeling, SFFA also showed that Asian Americans were rated lower than all other applicants on Harvard’s personal rating — a score given by admissions reviewers that assesses characteristics such as “integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit.”⁸⁴ This harkened back to the admissions controversies of the 1980s, where Asian Americans were stereotyped as lacking in these same characteristics.

Although these findings may be problematic, none of them prove intentional discrimination. But they did help create a narrative of Asian American victimhood, which seeped into the second claim.

That claim was the switch: a straight challenge to affirmative action.⁸⁵ SFFA claimed that Harvard used race-conscious admissions in an unconstitutional manner that penalizes Asian Americans. And since Harvard admitted to using a race-conscious admissions policy, the courts applied strict scrutiny.⁸⁶ Harvard bore the burden to show that its policy was narrowly tailored to its compelling interest in diversity.

SFFA’s requested remedy was to remove all references to race from applications. Doing so could eliminate negative action and affirmative action, since both require knowledge of an applicant’s race.⁸⁷ But importantly, SFFA later changed this position and focused solely on affirmative action.⁸⁸

SFFA lost on both claims in the lower courts.⁸⁹ However, in the Harvard case, the district court noted that “the disparity between white and Asian American applicants’ personal ratings has not been fully and satisfactorily explained.”⁹⁰ It rejected intentional discrimination as the cause, but it mentioned the possibility of implicit bias against Asian Americans.⁹¹ SFFA appealed the court’s ruling on this basis, arguing that Harvard bore the burden to explain Asian Americans’ lower scores on the personal rating.⁹² This argument was inconsistent with precedent, and the First Circuit soundly rejected it.⁹³

At the Supreme Court, SFFA argued foremost that Grutter should be overturned.⁹⁴ It folded in the argument that “Harvard penalizes Asian Americans” via the personal rating,⁹⁵ but its negative action claim was long gone. And SFFA now conceded that applicants could reveal their racial identities through essays, thus eschewing its own remedy for negative action.⁹⁶

Ultimately, the Court adopted many of SFFA’s arguments. The majority and concurring opinions did not address negative action directly, as it was no longer legally relevant. However, Chief Justice Roberts, along with Justices Thomas and Gorsuch, adopted the Asian American victimhood narrative. The majority opinion asserted that race was a “negative factor” for Asian Americans because “the District Court [which ruled for Harvard] observed that Harvard’s . . . [race-conscious policy] overall results in fewer Asian American[s] . . . being admitted.”⁹⁷ It noted that “[c]ollege admissions are zero-sum” because percentages add up to one hundred: an advantage that increases the percentage of one group will necessarily decrease the percentage of another.⁹⁸ Asian Americans were thus harmed by any boost in Black and Latina/o enrollment due to affirmative action.

But while Chief Justice Roberts showed that he could do basic math, he eschewed precedent. As Justice Sotomayor pointed out, in Grutter and Fisher I and II, the Court affirmed race-conscious policies that had a similar effect on the percentages of different groups.⁹⁹ Chief Justice Roberts subtly conflated negative action and affirmative action: he equated the incidental burden motivated by diversity with intentional discrimination motivated by racial animus. And by calling race a “negative factor” for Asian Americans, the majority portrayed us as victims of affirmative action.

Justices Thomas and Gorsuch reinforced the victimhood narrative. They both referenced Harvard’s history of discrimination against Jewish applicants, analogizing it to holistic review for Asian American applicants.¹⁰⁰ Justice Gorsuch noted that college counselors advise Asian Americans to hide their racial identities on applications.¹⁰¹ He also contended that universities engage in stereotyping by grouping together “East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi) . . . [which] . . . paves over countless differences in ‘language,’ ‘culture,’ and historical experience.”¹⁰²

In response, Justice Sotomayor reiterated that the lower courts had rejected claims of negative action.¹⁰³ She rebuked Justice Gorsuch by pointing out that “Asian American activists — mostly college students” coined the term “Asian American” to unify groups with common experiences.¹⁰⁴ Justice Sotomayor also noted that SFFA’s remedy did not address potential biases against Asian Americans in the personal rating score or elsewhere.¹⁰⁵ Both she and Justice Jackson underscored that Asian Americans can sometimes benefit from race-conscious admissions.¹⁰⁶

But despite their solid points of rebuttal, Justices Sotomayor and Jackson could not synthesize a counternarrative to Asian American victimhood. Their assertions, while valid, were largely isolated and did not fit together into an alternative story. They could not dispute that if Harvard stopped using race, the overall enrollment of Asian Americans would increase.¹⁰⁷ Chief Justice Roberts, and Justices Thomas and Gorsuch, mischaracterized that incidental burden with inapplicable referents to negative action.¹⁰⁸ And overall, the majority and concurring opinions simply devoted more space to Asian Americans.¹⁰⁹ The victimhood narrative prevailed in the SFFA cases, not only in the legal sense, but in the way that Asian Americans were portrayed.

IV. The Counternarrative: Asian American Weaponization

What might such a counternarrative to Asian American victimhood look like? And how might an Asian American Justice write a dissent that embodies it? Rather than casting us as victims, it would show how we were weaponized to dismantle affirmative action. It would also address the plethora of issues about Asian American identity and experiences that were ignored or covered only superficially in the SFFA opinions.

Such a dissent could be organized in various ways. Like all of the other opinions, it would address other issues not directly related to Asian Americans. The weaponization counternarrative might be interspersed within these other issues, but the analysis of Asian Americans’ racial positioning would be far more prominent and in-depth. I envision four aspects to this counternarrative.

A. Origins of the Victimhood Narrative

First, the counternarrative would lay out the social and historical context for the victimhood narrative. Analogous to Justice Sotomayor’s and Justice Jackson’s “fuller” history, it would delve into the history of discrimination that Asian Americans have faced. But unlike Justice Thomas’s opinion, it would go beyond World War II. It would describe the role of selective immigration policy in facilitating Asian American achievement. It would debunk the model minority stereotype by noting that many Asian Americans have structural advantages that other groups of color often lack.¹¹⁰ The counternarrative would also discuss psychological advantages Asian Americans may possess, relative to other groups. Onwuachi-Willig discusses research on “stereotype threat,” where invocation of stereotypes can diminish academic performance of Black students.¹¹¹ Similarly, Asian American scholars have described “stereotype promise” — where the stereotype of Asian Americans as high achievers “can enhance . . . performance” and become a “self-fulfilling prophecy.”¹¹²

Continuing this “fuller” history, the counternarrative would discuss backlash to Asian American presence on elite campuses, allegations of negative action, and the transformation of these allegations into attacks on affirmative action.¹¹³ It would call out SFFA’s bait-and-switch litigation by clearly distinguishing between the negative action and affir­mative action claims and explaining how SFFA conflated the two.¹¹⁴ It would also point out how SFFA changed its position on the remedy for negative action.¹¹⁵ Justice Sotomayor was on the verge of exposing this bait-and-switch,¹¹⁶ but she may have been reluctant to say that Asian Americans were used as tools to dismantle affirmative action. Perhaps an Asian American Justice would be more emboldened to speak from our perspective and elaborate on our positioning within the litigation.

B. Burdens on Admission

Second, the counternarrative would address the incidental burden of race-conscious admissions policies on Asian Americans. Like Justice Sotomayor’s opinion, it would emphasize that such a burden was perfectly consistent with Grutter.¹¹⁷ Justice Sotomayor further stated that it is predominantly White applicants who receive advantages for “athletes, legacy applicants, applicants on the Dean’s Interest List [primarily relatives of donors], and children of faculty or staff,” collectively known as “ALDC” applicants.¹¹⁸ She noted how advantages for ALDCs disfavor Black and Latina/o applicants.¹¹⁹ But she did not point out that only two percent of Asian American applicants were ALDCs — less than any other group.¹²⁰ An Asian American Justice, thinking about how our communities perceive the SFFA cases, would highlight clearly how many admissions factors other than race work to the disadvantage of Asian Americans vis-à-vis White applicants and have a larger effect on Asian American enrollment than affirmative action.¹²¹

Similarly, an Asian American Justice could also see the importance of addressing anti-Asian animus, negative action, and biases against Asian Americans in the admissions process much more fully than any of the Justices did. While the district court rejected SFFA’s claim of intentional discrimination by Harvard, it expressed concern about the lower personal rating scores of Asian American applicants and recommended implicit bias training for Harvard’s admissions reviewers.¹²² These biases could have originated from teachers’ and counselors’ recommendations,¹²³ but the specter of negative action by universities remains in our minds. SFFA¹²⁴ and Justice Gorsuch¹²⁵ were correct when noting that professional college counseling services cater specifically to Asian American applicants who fear discrimination in the admissions process.¹²⁶ And whether or not such discrimination is common, Asian Americans’ concerns about it should be taken seriously.

SFFA’s litigation also revealed problematic behavior by Harvard administrators. Harvard Dean of Admissions William Fitzsimmons was criticized by both SFFA and amici supporting Harvard for stating that White applicants were lifelong residents of rural areas while Asian Americans had only moved to these areas recently.¹²⁷ And SFFA also pointed out where the Harvard administration failed to respond to anti-Asian sentiments with proper vigilance.¹²⁸ All of this occurs in a context where Asian Americans are increasingly viewed as a “peril of the mind” even in K–12 schooling.¹²⁹ Almost two decades ago, the Wall Street Journal reported on the “New White Flight”: affluent White families in Silicon Valley, California, moving away from high-performing high schools, out of fear that their children would be outcompeted by Asian American students who were “too academically driven.”¹³⁰ Such “new White flight” has also occurred in other cities.¹³¹ Moreover, two recent sociological studies examined backlash to Asian Americans’ success in predominantly White, affluent communities.¹³²

Although a sitting Justice would not comment specifically on cases that could come before the Court, all of these dynamics are in the backdrop of magnet school admissions cases that the Justices may hear in the future.¹³³ It is therefore important to address Asian Americans’ concerns about negative action in general terms. Any counternarrative that fails to do so cedes this discourse to the victimhood narrative. And an Asian American Justice would more likely be in tune with our concerns and understand the importance of addressing these issues.¹³⁴

C. Nuances of Asian American Identity

Third, the counternarrative would delve into the nuances of Asian American identity, elaborating on the commonalities and differences among Asian Americans. It would respond to Justice Gorsuch’s assumption that ancestral “language” and “cultural” differences are more significant than common experiences in America.¹³⁵ Whether of East Asian or South Asian ancestry, most Asian Americans do speak the same language — English. We grew up speaking it, and we grew up with people assuming we couldn’t speak it.¹³⁶

Justice Sotomayor’s point that it was college student activists who coined the term “Asian American” is of particular significance for university admissions.¹³⁷ College campuses are particularly salient venues for the development of Asian American identity. Asian Americans of different ethnicities have faced not only common experiences of stereotyping and discrimination,¹³⁸ but also common family conflicts and cultural dilemmas — around issues such as dating, career choices, and pressures to achieve. College is precisely the time when such conflicts and dilemmas become most salient. And when dealing with such issues, Chinese American young adults often have more in common with their Indian American counterparts than they do with international students from China.¹³⁹

The counternarrative would point out that Asian American students also bring these commonalities into classroom and campus discussions to break down the perpetual foreigner stereotype — reflecting the hallmark benefit of diversity that Grutter put forth.¹⁴⁰ Universities consider such commonalities when providing campus resources, such as mental health and educational programs. Some of these resources are geared specifically towards Asian Americans,¹⁴¹ and others are focused on international students — including students from Asian countries.¹⁴² Justice Gorsuch missed the key distinction between these two groups.

The counternarrative would also highlight the times when it is important to disaggregate different Asian American subgroups. Justice Sotomayor noted that “the Asian American community is not a monolith”¹⁴³ but she did not elaborate or differentiate between subgroups.¹⁴⁴ On campuses, students navigate this interplay between commonality and difference. There are student organizations and resources for both Asian Americans as a whole and for specific Asian American subgroups.¹⁴⁵ Often these entities work together closely.¹⁴⁶ Different subgroups may be underrepresented at different universities, and some subgroups face particular challenges that admissions committees can take into account.¹⁴⁷ Justices Sotomayor and Jackson noted that applicants can articulate their individual racial identities and personal experiences as part of a holistic admissions process.¹⁴⁸ Universities, along with Asian American students themselves, are in the best position to determine when to think of Asian Americans as a whole and when to disaggregate subgroups.¹⁴⁹ That is one reason why Grutter deferred to universities on defining diversity-related goals.¹⁵⁰

Unfortunately, the majority and concurring opinions were divorced from such nuances around the lived experiences of Asian Americans on campuses, and the dissents only addressed them briefly. An Asian American Supreme Court Justice — perhaps one who was involved in Asian American student organizations while in college — may have been able to articulate such nuances of Asian American identity and diversity more effectively.

D. Solidarity for Racial Justice

Finally, the counternarrative would speak directly to Asian Americans about our positioning in the U.S. racial landscape. It would invoke the guidance of four prominent Asian American law professors to look “beyond self-interest”¹⁵¹ rather than focus narrowly on the incidental burden of race-conscious admissions. It would lay out how Asian Americans are valorized as model minorities to pit us against Black, Latina/o, and Native Americans. Like Onwuachi-Willig’s analysis, it would highlight the importance of racial identity, but specifically for Asian Americans: our own need to become aware of our histories, articulate our own experiences with racism, understand our positioning in relation to other groups of color, and to be in solidarity with those groups in advocacy for racial justice. The college student activists whom Justice Sotomayor credited with coining “Asian American” also formed coalitions with other groups of students of color.¹⁵² In the late 1960s, the Third World Liberation Front (TWLF) at San Francisco State University and the University of California, Berkeley, included Black, Asian American, Mexican American, and Native American student groups.¹⁵³ TWLF resulted in the creation of the Departments of Ethnic Studies and African American Studies at Berkeley.¹⁵⁴ Asian American identity itself is historically linked to coalitions between people of color on campuses,¹⁵⁵ to fight for representation of all groups.¹⁵⁶

Over two decades ago, the late Norman Mineta — U.S. Representative from San Jose, California, who would later serve in two presidential cabinets and become the then–highest ranking Asian American in federal government¹⁵⁷ — made such a bold statement about California’s ban on affirmative action:

Asian Pacific Americans will lose out if affirmative action programs are abolished. Our community will pay a price that will far outweigh any increase in Asian Pacific enrollment in the University of California system. Asian Pacific American students admitted to the University may find that the number of Asian Pacific American professors at their school won’t be getting any larger.  . . . [W]hen they enter the workforce they may run into the same glass ceiling their parents and grandparents are running into today. This time, however, the best weapon to fight that glass ceiling — affirmative action — will no longer be available.¹⁵⁸

Representative Mineta’s statement highlights the common ground in fighting racism that Asian Americans share with all people of color.¹⁵⁹ And articulating this common ground would be the culmination of the counternarrative written by an Asian American Supreme Court Justice.

Conclusion

The majority and concurring opinions in the SFFA cases employed a narrative of Asian American victimhood to justify their embrace of constitutional colorblindness — the principle espoused by Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.¹⁶⁰ Onwuachi-Willig notes that when Chief Justice Roberts invoked this dissent, he ignored Justice Harlan’s apparent “nod to white superiority,” because acknowledging it “would have disrupted the sanitized and simplistic narrative about the racial history of the United States” that the majority put forth in support of its holding.¹⁶¹ But Chief Justice Roberts also ignored another passage from Justice Harlan’s Plessy dissent: one that “allude[d] to the Chinese race,” which according to Justice Harlan was “a race so different from our own that we do not permit those belonging to it to become citizens of the United States.”¹⁶² Even in 1896, Asian Americans were part of the story in the case that upheld the segregation of Black Americans. And a complete narrative of American racial history must include the complex racial positioning of Asian Americans.

The precarious role of Asian Americans in admissions controversies is far from over. The next battleground is selective public magnet high school admissions, where several lawsuits are pending.¹⁶³ The most prominent of these, Coalition for TJ v. Fairfax County School Board,¹⁶⁴ has Asian American plaintiffs.¹⁶⁵ This lawsuit goes one step further than the SFFA cases and challenges race-neutral efforts to attain diversity.¹⁶⁶ It also reveals even more complexities in the positioning of Asian Americans.¹⁶⁷ The Supreme Court will eventually hear this or another similar case, but unlike the SFFA cases, the outcome will be uncertain.¹⁶⁸ The narratives emerging from the case’s proceedings might even determine the ruling. And when the Justices meet secretly at that long conference table to discuss the case, I can only hope that a voice for Asian Americans is present.

---

* Don L. and Mabel F. Dickason Endowed Professor in Law, University of New Mexico School of Law. J.D. 2009, New York University School of Law; Ph.D. 2005, University of Pennsylvania. I would like to thank the faculty of Southern Methodist University Dedman School of Law for their insightful feedback on this Response. The editors of the Harvard Law Review also made excellent suggestions as I revised it. Additionally, the University of New Mexico School of Law has provided outstanding support for my work.