As a couple of commentators at the Volokh Conspiracy have noted, yesterday’s Schuette v. BAMN decision rambles across five opinions and more than 100 pages, yet mentions the word “Asian” not once.One might also add that the residual category of "white" encompasses a number of groups -- notably Catholics and Jews -- who have historically been the target of religious or ethnic discrimination.
The word “minority” appears more than 100 times throughout the decision, and Justice Sonia Sotomayor wrote a passionate, 58-page dissent highlighting the continuing difficulty of certain minority groups to get into the nation’s most prestigious colleges and graduate schools. But not Asian Americans. As minorities go, they apparently don’t count, at least when it comes to discrimination in higher education.
Asian Americans generally come out on the losing side of affirmative action, however, so Michigan’s ban might have served their interests. As George Mason University School of Law Professor David Bernstein put it in this post, ”had the dissent been the majority, the Supreme Court would have restructured Michigan’s political process to the disadvantage of Asian Americans.” If voters were unable to enact a ban on racial preferences, in other words, Asian Americans would lose the right to join with other groups to pass such a measure — exactly why Sotomayor said Michigan’s Prop. 2 was unconstitutional in her dissent.