Introduction
In his insightful commentary 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 criticizes Chief Justice Roberts’ 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 about racial experiences.3 Onwuachi-Willig explains how Chief Justice Roberts accepts whiteness as an unspoken norm and ignores the marginalization of people of color.4 Contrast This is in keeping with the “most comprehensive” history of American racism presented by Justices Sotomayor and Jackson in their dissents.5 And he skillfully adds to his counternarrative his own multifaceted analysis, incorporating narrative theory, history, and social science.6

However, one important point Absent throughout from this “fuller” story was the precarious position of Asian Americans.7 I make this observation as an Asian American scholar who has written extensively about Asian Americans. and affirmative action,8 sometimes in very personal ways.9 We played an integral role in the cases, particularly in SFFA v. Harvard,10 which put the spotlight on its Asian American plaintiffs. But while five of the six opinions When they mentioned us,11 their discussions lacked depth. The views did not situate Asian Americans within the broader racial landscape of the United States. They failed to capture the complexity of Asian American identity. And they failed to give voice to our experiences. . What struck me as I read the opinions and reflected on Onwuachi-Willig’s analysis is the need for an Asian American justice on the Supreme Court.

The majority opinion, along with concurring opinions by Justices Thomas and Gorsuch, They did tell a story about us. But it was a shallow, flawed, and short-sighted narrative of Asian Americans as victims of affirmative action. And yet this narrative prevailed, not just legally but rhetorically, because no narrative was presented. alternative. Justice Jackson had recused herself in the Harvard case,12 in which Asian Americans were most prominent, so her commentary on us was inherently limited. As a progressive voice, Justice Sotomayor was essentially a three-person bench. and could devote only limited attention to Asian Americans. He offered good rebuttals to specific points, but these were isolated and incomplete. They did not fit effectively into a counternarrative.

In telling their “fuller” story, Justices Sotomayor and Jackson understandably focused on black (and to some extent Latino) Americans. They likely felt a duty to do so, as they are the voices on the Court for the most marginalized groups. They took on an important task, as Supreme Court dissents can influence the public sphere, shaping how future legal minds think about issues. 13 Narratives are inevitably dictated by the narrator’s experiences and understandings, making representation all the more meaningful. But that is why, in the SFFA cases, the “fuller” story of Asian Americans was lost. 14

My response to Onwuachi-Willig aims to tell that “fuller” story, both to show how the narrative of victimhood emerged and to raise a counternarrative: a story of Asian Americans not as victims of affirmative action, but as tools used as weapons to dismantle it. While Onwuachi-Willig’s commentary focuses on the racialization of blacks and Latinos and the “raceless” privilege of whites, I add Asian Americans to this account of American racism. My counternarrative employs an alternative “narrative glue”—a different approach to “the way incidents and events are put together into a meaningful story.”15 And at the heart of my analysis is the view that an Asian American judge might be able to convey this counternarrative more effectively.

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 opinions among Asian Americans? (2) Does the counternarrative I propose have to be told by an Asian American? Part II provides the historical and social context for understanding the competing narratives about Asian Americans and admissions. It examines the history leading up to the SFFA cases and the racial stereotypes that form the doxa of these competing narratives. Part III sets forth the victimization narrative. I illustrate how this narrative emerged from the SFFA litigation strategy and how it was employed by the majority and concurring opinions. Part IV sets forth the counternarrative: the weaponization of Asian Americans against affirmative action. I consider how an Asian American judge would be best positioned to present many aspects of this counternarrative. The Conclusion looks ahead to emerging admissions controversies where the racial positioning of Asian Americans is key and where an Asian American voice is needed on the Supreme Court.

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 put Asian-American identity at the center in a case where we occupy such an important space. But there is enormous diversity among Asian-Americans, including differing views on affirmative action. When the first Asian-American justice is appointed, he or she may well align with the conservative wing of the Court.

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

But must this voice come from an Asian American judge? Could someone else convey the counternarrative? There are judges who have been effective in addressing relevant issues and standing up for groups to which they do not belong. Justice Sotomayor’s opinions, including in the SFFA cases, have raised important issues for black Americans. Her dissent in Utah v. Strieff17 was dubbed a “Black Lives Matter manifesto.”18 Similarly, Justice Gorsuch has written opinions that 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 counternarrative about militarization that could be effectively told by a non-Asian American judge, if he or she has a nuanced understanding of our history, identity, and experiences.20 However, there are also parts of the counternarrative that I believe require an Asian American voice to speak 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, setting the context for the stories they tell. In their dissenting opinions, Justices Sotomayor and Jackson looked at historical context to interpret the Fourteenth Amendment and linked it to sociological data that highlighted current racial inequalities. 21 Justice Jackson also poignantly conveyed the plight of black Americans through the personal narratives of hypothetical petitioners. 22 As Onwuachi-Willig notes, his opinions established the relevance of race in the past and present lives of black and Latino Americans. 23

For Asian Americans, however, this context was missing. It was Justice Thomas who actually wrote the most about Asian American history. He referenced the 1882 Chinese Exclusion Act, the 1927 school segregation case of Gong Lum v. Rice,24 and the internment of Japanese Americans during World War II.25 These are all important developments, but Justice Thomas stopped there.26 He ignored the more recent and complex history of Asian Americans that laid the groundwork for the SFFA cases and the narratives told through them.27 This history is intricately tied to racial stereotypes, as are the cases more broadly. But while most of the concurring and dissenting opinions mentioned stereotypes, they said little about the merits. Chief Justice Roberts, joined by Justices Thomas and Gorsuch, simply held that racial categories are themselves merely stereotypes.28 And while Justice Sotomayor’s dissent alluded to the “potent and dehumanizing stereotypes” facing Asian Americans,29 it also did not elaborate.

The merits are 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 marginalize them, sometimes simultaneously.

The positioning of Asian Americans in admissions controversies is an example of this process. In her racial triangulation framework, Professor Claire Jean Kim analyzes how Asian Americans are simultaneously valorized as hard-working, successful people and ostracized as threatening outsiders, 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 increased immigration of highly educated scientists, engineers, and similar professionals.35 The United States was then in the midst of the Cold War and needed such professionals to compete technologically with the Soviet Union.36 At the same time, Asian nations such as China and India had many highly educated professionals and few opportunities in their home countries.37 The 1965 Act favored both the interests of the U.S. government and those of such professionals. This gave rise to a wave of educated Asian immigrants,38 many of whom had the social capital that prepared them for success.39 This wave of immigrants and their children became the high-achieving Asian Americans, whose numbers have increased in elite institutions over the past fifty years.40 Importantly, there are also many Asian immigrants and Asian Americans who do not fit this profile.41

However, conservatives have employed the model minority stereotype to pit Asian Americans against blacks, Latinos, and Native Americans.42 They argue that because Asian Americans worked hard to overcome barriers, these other groups can do so as well.43 But this ignores the distinctive histories and social positions of all of our groups. Voluntary and highly educated immigrants occupy a very different position in the U.S. social hierarchy than people whose ancestors were brought here by force on slave ships (many African Americans), or who were incorporated through conquest (many Native Americans), or who came here without high levels of skill or education (many Latinos/as).44 Still, the model minority stereotype is exploited to undermine progressive policies like affirmative action.45 In the SFFA cases, it created a sympathetic context for the victimization narrative: hard-working, high-achieving Asian Americans rejected from elite universities in favor of undeserving applicants.

The model minority stereotype also has a flip side that the SFFA exploited further. While we are valued as model minorities, Asian Americans are ostracized as “perpetual foreigners,” more tied to our ancestral homelands than to the United States. 46 We are seen as interlopers in white elite 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 began to be seen as a “danger to the mind,” a threat to white dominance precisely because of our success. 49 In the early 1980s, white students who felt threatened labeled several campuses with epithets: the Massachusetts Institute of Technology became “Made in Taiwan,” and the University of California, Los Angeles (UCLA) became “University of Caucasians Living Among Asians.” 50 Asian American students were seen as overly competitive students who drove up the grade curves. 51

Some university professors and administrators also made racist comments about the overrepresentation of Asian Americans. Brown’s admissions director reportedly stated that Brown could reduce its class size by “eliminating the first ten Kims from the top of the list.”52 And at Princeton, a professor recalled an admissions committee discussion about a “clearly qualified Asian-American student” where one committee member stated “[w]e have enough” and another agreed that “[y]ou must admit there are a lot of them.”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, research at Stanford found that unconscious biases in the assessment of personality traits could work against Asian-American applicants. 55 Both studies concluded that there was no intentional discrimination,56 but their findings reflected another stereotype of Asian Americans: that we are passive and socially inept.57 More than three decades later, the SFFA litigation would lead to a similar controversy over Harvard’s personal characteristics ratings. 58

Against this backdrop, 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 animosity that Jewish students faced at elite universities in the early and mid-20th century. 61 The Department of Education’s Office for Civil Rights (OCR) investigated the allegations of negative action and found that UCLA had discriminated against five students of Asian descent in 1987 and 1988. 62 And although Harvard was cleared of discrimination, the SFFA would later claim that the OCR investigation into Harvard was “roundly criticized.” 63

This history is significant to the SFFA cases, and distinguishing negative action from affirmative action is key. The latter refers to policies intended to increase the presence of underrepresented groups, not to advantage white Americans.64 However, in the 1990s, opponents of affirmative action blurred this distinction as they began to challenge 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 came before the Court. The opinions in Gratz v. Bollinger67 and Grutter v. Bollinger68 did not address Asian Americans,69 nor 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 victimization.72 Justice Alito asserted 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 held that UT did not value Asian American contributions to diversity,74 and criticized the notion of Asian American as a category and identity,75 which foreshadowed another problem in the SFFA cases.76

All of this laid the groundwork for the SFFA strategy. The combination of negative action and affirmative action culminated in the SFFA cases and buttressed the narrative of Asian American victimization.

III. The Asian American Victimhood Narrative

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

The first claim, however, was the bait. The SFFA showed that admitted Asian-American applicants had better academic credentials than admitted white applicants.82 It revealed the many facets of Harvard’s admissions process that disadvantaged Asian-Americans.83 It selectively cited stereotypical comments, and through statistical modeling, the 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, kindness, courage, helpfulness, strength, empathy, self-confidence, leadership ability, maturity, or courage.”84 This was reminiscent of the admissions controversies of the 1980s, where Asian-Americans were stereotyped as lacking these same characteristics.

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

That claim was the turning point: a direct challenge to affirmative action. 85 The SFFA held that Harvard used race-sensitive admissions in an unconstitutional way that penalized Asian Americans. And because Harvard admitted to using a race-sensitive admissions policy, the courts applied strict scrutiny. 86 Harvard had the burden of showing that its policy was narrowly tailored to its compelling interest in diversity.

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

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

In the Supreme Court, SFFA primarily argued that Grutter should be reversed. 94 It included the argument that “Harvard penalizes Asian Americans” through the personal rating,95 but its negative action claim had long since disappeared. And the SFFA now admitted that applicants could reveal their racial identities through essays, thereby avoiding its own remedy for negative action.96

Ultimately, the Court adopted many of the 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, joined by Justices Thomas and Gorsuch, adopted the narrative of Asian American victimization. The majority opinion asserted that race was a “negative factor” for Asian Americans because “the District Court [that ruled in favor of Harvard] observed that Harvard’s race-conscious policy … generally results in fewer Asian Americans being admitted.”97 It noted that “college 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 Therefore, Asian Americans were harmed by any increase in black and Latino enrollment due to affirmative action.

But while Chief Justice Roberts demonstrated that he could do basic math, he eschewed precedent. As Justice Sotomayor noted, in Grutter and Fisher I and II, the Court upheld race-conscious policies that had a similar effect on the percentages of different groups.99 Chief Justice Roberts subtly confused affirmative action with negative action: he equated 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 about Asian American victimhood look like? And how might an Asian American judge write a dissent that embodies it? Rather than portraying 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 only superficially addressed in the SFFA opinions.

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

A. Origins of the Victimhood Narrative

First, the counternarrative would lay out the social and historical context of the victimization 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 the achievement of Asian Americans. It would debunk the model minority stereotype by pointing out that many Asian Americans have structural advantages that other groups of color often lack. 110 The counternarrative would also discuss the psychological advantages that Asian Americans may possess, relative to other groups. Onwuachi-Willig discusses research on “stereotype threat,” in which the invocation of stereotypes can diminish the academic performance of black students. 111 Similarly, Asian American scholars have described the “promise of stereotypes,” in which the stereotype of Asian Americans as high achievers “can enhance… 112

Continuing this “fuller” story, the counternarrative would analyze the negative reaction to the presence of Asian Americans on elite campuses, the accusations of negative action, and the transformation of these accusations into attacks on affirmative action. 113 It would call out the SFFA’s misleading litigation by clearly distinguishing between claims of negative action and affirmative action and explain how the SFFA confused the two. 114 It would also point out how the SFFA changed its position on the remedy for negative action. 115 Justice Sotomayor was about to expose this deception, 116 but may have been reluctant to say that Asian Americans were used as tools to dismantle affirmative action. Perhaps an Asian-American judge would be more willing to speak from our perspective and explain our position within the litigation.

B. Burdens on Admission

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

Similarly, an Asian American judge might also see the importance of addressing the Anti-Asian animus, negative action, and bias against Asians. The Harvard District Court has brought Asian American involvement in the admissions process much more fully to light than any of the judges. While the district court rejected SFFA’s claim of intentional discrimination by Harvard, it did express concern about Asian American applicants’ lower personal rating scores and recommended that Harvard’s admissions reviewers receive implicit bias training. 122 These biases might have originated in the recommendations of teachers and counselors,123 but the specter of negative action by universities remains present in our minds. The SFFA124 and Justice Gorsuch125 were correct to note that professional college counseling services cater specifically to Asian American applicants who fear discrimination in the admissions process. 126 And, regardless of whether such discrimination is common or not, Asian Americans’ concerns about it must be taken seriously.

The SFFA litigation also revealed problematic behavior by Harvard administrators. Harvard admissions dean William Fitzsimmons was criticized by both the SFFA and amici supporting Harvard for claiming that white applicants had been lifelong residents of rural areas, while Asian Americans had moved to those areas only recently. 127 And the SFFA also pointed out where Harvard’s administration failed to respond to anti-Asian sentiments with due vigilance. 128 All of this is occurring against a backdrop where Asian Americans are increasingly seen as a “danger to the mind,” even in primary and secondary education. 129 Nearly two decades ago, the Wall Street Journal reported on the “new white flight”: wealthy white families in California’s Silicon Valley shying away from high-performing high schools, fearing that their children would be outperformed by Asian American students who were “too academically motivated.” 130 Such “new white flight” has occurred in other cities as well. 131 Moreover, two studies have found that white families are increasingly seen as a “danger to the mind,” even in primary and secondary education. 132 Recent sociological studies examined the backlash to Asian American success in predominantly white and affluent communities.132

While one sitting justice declined to comment specifically on cases that may come before the Court, all of these dynamics play out in the context of magnet school admissions cases that the justices may hear in the future.133 Thus, it is important to address Asian American concerns about negative actions broadly. Any counternarrative that does not do so cedes this discourse to the narrative of victimization. And an Asian American judge would likely be attuned to 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, delving into the commonalities and differences among Asian Americans. It would respond to Justice Gorsuch’s assumption that ancestral differences of “language” and “culture” are more significant than common experiences in the United States.135 Whether of East or South Asian descent, most Asian Americans speak the same language: English. We grew up speaking it, and we grew up with people who assumed we didn’t know how to speak it.136

Judge Sotomayor’s argument that it was campus activists who coined the term “Asian American” is of particular relevance to college admissions.137 College campuses are particularly salient sites for the development of Asian American identity. Asian Americans of different ethnicities have faced not only common experiences of stereotypes 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 faced with these issues, Chinese American young adults often have more in common with their Indian American counterparts than with international students from China.139

The counternarrative would point out that Asian American students also bring these commonalities to classroom and campus discussions to break down the perpetuated stereotype of the foreigner, reflecting the distinctive benefit of diversity that Grutter proposed.140 Universities consider these commonalities when offering resources on campus, such as educational and mental health programs. Some of these resources are geared specifically toward Asian Americans,141 and others focus on international students, including students from Asian countries.142 Justice Gorsuch overlooked the key distinction between these two groups.

The counternarrative would also highlight moments when it is important to disaggregate different Asian American subgroups. Justice Sotomayor noted that “the Asian American community is not a monolith,”143 but did not elaborate or differentiate between subgroups.144 On campuses, students navigate this interplay between what they have in common and what they differ from. There are student organizations and resources for both Asian Americans as a whole and specific subgroups of Asian Americans. 145 These entities often work closely together. 146 Different subgroups may be underrepresented at different universities, and some face particular challenges that admissions committees may want to consider. 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 about Asian Americans as a whole and when to disaggregate subgroups. 149 That’s one reason Grutter left it up to universities to define diversity goals. 150

Unfortunately, the majority and concurring opinions did not take into account such nuances around the lived experiences of Asian Americans on campus, and the dissent only briefly addressed them. An Asian American Supreme Court justice — perhaps one who was involved in Asian American student organizations while in college — might have been able to articulate those 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 positionality 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 focusing narrowly on the incidental burden of race-conscious admissions. It would lay out how Asian Americans are valorized as model minorities to pit against Black, Latino, 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 positionality relative to other groups of color, and stand in solidarity with those groups in advocacy for racial justice. The campus activists whom Justice Sotomayor credited with coining the term “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 groups of black, Asian American, Mexican American, and Native American students.153 The TWLF resulted in the creation of the Departments of Ethnic Studies and African American Studies at Berkeley.154 Asian American identity itself is historically tied to coalitions among people of color on campuses,155 to fight for representation of all groups.156

More than two decades ago, the late Norman Mineta—a U.S. representative from San Jose, California, who would later serve in two presidential cabinets and become the highest-ranking Asian American in government—proposed the term “Asian American.”157 157—made such a bold statement about California’s ban on affirmative action:

Asian Pacific Americans will lose if affirmative action programs are eliminated. Our community will pay a price that will far exceed 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 faculty at their school will not increase… When they enter the workforce, they may encounter the same glass ceiling that their parents and grandparents encounter today. This time, however, the best weapon to fight that glass ceiling—affirmative action—will no longer be available.158

Rep. Mineta’s statement highlights the common ground in the fight against 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 victimization to justify their acceptance of constitutional race-blindness, the principle upheld 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 upset the sanitized and simplistic narrative about American racial history” that the majority put forth in support of its decision. 161 But Chief Justice Roberts also ignored another passage in Justice Harlan’s dissent in Plessy: one that “alludes to the Chinese race,” which Justice Harlan said 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 segregation for 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 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 suit goes a step further than the SFFA cases, challenging race-neutral efforts to achieve diversity.166 It also reveals even more complexities in the positioning of Asian Americans.167 The Supreme Court will eventually hear this or a similar case, but unlike the SFFA cases, the outcome will be uncertain.168 The narratives that emerge from the case’s proceedings could even determine the ruling. And when the justices gather in secret around that long conference table to discuss the case, I can only hope that there will be a voice for Asian Americans.