Excerpted From: Vinay Harpalani, The Need for an Asian American Supreme Court Justice, 137 Harvard Law Review Forum 23 (November, 2023) (168 Footnotes) (Full Document)

VinyHarpalani.jpegIn 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 Carolina (hereinafter SFFA cases), Dean Angela Onwuachi-Willig critiques Chief Justice Roberts's majority opinion for its “simplistic understanding of race and racism.” She interrogates the “doxa”--the “unexamined cultural beliefs” that structure the majority's narrative on racial experiences. Onwuachi-Willig elucidates how Chief Justice Roberts accepts whiteness as a tacit norm and ignores the marginalization of people of color. She contrasts this with the “fuller” history of American racism brought forth by Justices Sotomayor and Jackson in their dissents. And she deftly adds to their counternarrative with her own multifaceted analysis, incorporating narrative theory, history, and social science.

Nevertheless, one important aspect of this “fuller” history was missing throughout: the precarious positioning of Asian Americans. I make this observation as an Asian American academic--one who has written extensively about Asian Americans and affirmative action, sometimes in a very personal manner. We had an integral role in the cases, particularly in SFFA v. Harvard, which spotlighted its Asian American plaintiffs. But although five of the six opinions mentioned us, 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, 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. 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.

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.” 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.

[. . .]

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. 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. 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.” 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. The most prominent of these, Coalition for TJ v. Fairfax County School Board, has Asian American plaintiffs. This lawsuit goes one step further than the SFFA cases and challenges race-neutral efforts to attain diversity. It also reveals even more complexities in the positioning of Asian Americans. The Supreme Court will eventually hear this or another similar case, but unlike the SFFA cases, the outcome will be uncertain. 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.