Lee Fang:
It’s amazing how many pages the liberal justices spend discussing historical racial wrongs without ever really touching the history of Asian Americans, the actual plaintiffs in the affirmative action case. The only justice to do that is Justice Thomas, in his concurrence.
As the Court’s opinion today explains, the zero-sum nature of college admissions- -where students compete for a finite number of seats in each school’s entering class aptly demonstrates the point. Ante, at 27.° Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the con-trary, our Nation’s first immigration ban targeted the Chi-nese, in part, based on “worker resentment of the low wage rates accepted by Chinese workers.” U.S. Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, p. 3 (1992) (Civil Rights Issues); Act of May 6, 1882, ch. 126, 22 Stat. 58-59.
In subsequent years, “strong anti-Asian sentiments in the Western States led to the adoption of many discriminatory laws at the State and local levels, similar to those aimed at blacks in the South,” and “segregation in public facilities, including schools, was quite common until after the Second World War.” Civil Rights Issues 7; see also S. Hinnershitz, A Different Shade of Justice: Asian American
° JUSTICE SOTOMAYOR apparently believes that race-conscious admission programs can somehow increase the chances that members of certain races (blacks and Hispanics) are admitted without decreasing the chances of admission for members of other races (Asians). See post, at
58-59. This simply defies mathematics. In a zero-sum game like college admissions, any sorting mechanism that takes race into account in any way, see post, at 27 (opinion of JACKSON, J.) (defending such a system), has discriminated based on race to the benefit of some races and the detriment of others. And, the universities here admit that race is determinative in at least some of their admissions decisions. See, e.g., Tr. of Oral Arg. in No. 20-1199, at 67; 567 F. Supp. 3d 580, 633 (MDNC 2021); see also 397 F. Supp. 3d 126, 178 (Mass. 2019) (noting that, for Harvard,
“race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants”); ante, at 5, n. 1 (describing the role that race plays in the universities’ admissions processes).
Civil Rights in the South 21 (2017) (explaining that while both Asians and blacks have at times fought “against similar forms of discrimination,” “It]he issues of citizenship and immigrant status often defined Asian American battles for civil rights and separated them from African American legal battles”). Indeed, this Court even sanctioned this segregation in the context of schools, no less. In Gong Lum
v. Rice, 275 U. S. 78, 81-82, 85-87 (1927), the Court held that a 9-year-old Chinese-American girl could be denied entry to a “white” school because she was “a member of the Mongolian or yellow race.”
Also, following the Japanese attack on the U.S. Navy base at Pearl Harbor, Japanese Americans in the American West were evacuated and interned in relocation camps. See Exec. Order No. 9066, 3 CFR 1092 (1943). Over 120,000 were removed to camps beginning in 1942, and the last camp that held Japanese Americans did not close until
1948. National Park Service, Japanese American Life During Internment, www.nps.gov/articles/japanese-american-internment-archeology.htm. In the interim, this Court endorsed the practice. Korematsu v. United States, 323 U. S.214 (1944).
Given the history of discrimination against Asian Ameri-cans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants.10 But this problem is not limited to Asian Americans; more
10 Even beyond Asian Americans, it is abundantly clear that the university respondents’ racial categories are vastly oversimplistic, as the opinion of the Court and JUSTICE GORSUCH’s concurrence make clear. See ante, at 24-25; post, at 5-7 (opinion of GORSUCH, J.). Their “affirmative action” programs do not help Jewish, Irish, Polish, or other “white” ethnic groups whose ancestors faced discrimination upon arrival in America, any more than they help the descendants of those Japanese-American citizens interned during World War I.
