AAPIs and All Americans Need a Full Supreme Court

Partisan politics by the Senate Judiciary Committee threaten the Court’s ability to administer justice

The vacancy on the U.S. Supreme Court has a direct and dramatic impact on the Asian American and Pacific Islander (AAPI) community. We have seen a proliferation of the deadlock scenario feared by advocates across the country since the Senate Judiciary Committee leadership announced their refusal to hold hearings on any Supreme Court nomination made by President Obama (and the subsequent stalling of the judicial confirmation process for President Obama’s nominee, Judge Merrick Garland). All Americans deserve to have a fully functioning third branch of government but the issues before the Court this term, including immigration, affirmative action, and reproductive rights, are critical to the daily lives of AAPIs. This Supreme Court vacancy poses serious concerns to AAPIs as these issues remain unresolved and could have devastating results from a 4–4 split or get sent back to the lower courts without definitive resolution.

Affirmative Action

Fisher v. University of Texas is one case in which the inability to have a full Supreme Court will likely impact the outcome. At issue in Fisher is whether the University of Texas may consider an applicant’s race as a factor of a factor within a holistic review process when evaluating an applicant for possible admission to the university. Justice Scalia’s passing and Justice Kagan’s recusal from the case leaves the Court with only seven justices to rule on such an important issue that will determine whether many of our historically disadvantaged Asian American and Pacific Islander students will have access to higher education through affirmative action policies.

Women’s Health

Another case is Whole Women’s Health v. Cole. This case is the Supreme Court’s first abortion case in more than 24 years. At issue are Texas state laws that have established onerous requirements for clinics that perform abortions — such as requiring them to have admitting privileges at a hospital in order to provide abortions. The Fifth Circuit upheld the facial validity of these laws, and an appeal is before the Supreme Court. A 4–4 split would leave the Fifth Circuit’s ruling intact and leave these anti-abortion laws valid under the Constitution. A clear majority of five votes is needed to overturn these laws.

Immigration Actions

Also on the docket is United States v. Texas. This case concerns whether the Obama administration is within its constitutional powers to implement Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expanded Deferred Action for Childhood Arrivals (DACA). These programs would postpone the deportation of many of undocumented immigrants, allowing them to emerge from the shadows and live their lives without the constant fear of deportation. A federal district court enjoined the administration from providing this administrative relief from the specter of immediate deportation, and the Fifth Circuit affirmed. Again, as in Whole Women’s Health, five votes, in this case, are needed in the Supreme Court to overturn this unfortunate ruling by the Fifth Circuit. Nearly 500,000 AAPIs stand to benefit from all existing deferred action programs. Both DAPA and expanded DACA would provide deportation relief and work authorization for eligible immigrants, which in some states, would allow undocumented immigrants to have a driver’s license, receive health care, open a bank account and receive in-state tuition. These programs would allow families to stay together and not live in fear.

These cases underscore the need for a full complement of the Supreme Court. AAPIs and all Americans deserve a full and completely functioning judiciary, one that can live fully up to the creed etched on the façade of its courthouse: “Equal justice under law.” Until a ninth justice is confirmed, Americans have a less-than-fully functioning third branch of government. Too many important legal questions of national significance remain to be decided by the Supreme Court for it to continue to operate under anything less than full capacity.