The Supreme Court Just Passed Up a Chance to Overrule Appallingly Racist Precedents

The Supreme Court just can’t seem to quit the Insular Cases, a series of controversial decisions from the era of Plessy v. Ferguson that established a doctrine of “separate and unequal” status that has justified denying basic constitutional rights and protections to the nearly 4 million Americans living in Puerto Rico and other U.S. territories.

On Monday, the Supreme Court unanimously upheld the constitutionality of the Financial Oversight and Management Board for Puerto Rico—an undemocratic, federally appointed body with near-total authority over Puerto Rico’s budget and finances. In doing so, the court once again avoided the opportunity to finally overrule the Insular Cases. Parties on both sides called on the court to expunge this shameful remnant of America’s imperialist past from our body of constitutional law. Yet the most the court could muster was an acknowledgment that the Insular Cases are “much criticized” and that “whatever their continued validity,” the justices “will not extend them in these cases.”

It’s easy to see why the justices would distance themselves from the Insular Cases. Issued at the height of America’s imperialist expansion in the early 20^th century, these controversial decisions broke from prior precedent to create the doctrine of territorial incorporation, allowing Congress to govern residents of so-called unincorporated territories outside the usual constitutional limitations on its power. The expressly stated justification for this discriminatory doctrine was the racist belief that these newly acquired overseas territories were populated by “alien races” and “savages” who could not comprehend American “Anglo-Saxon principles.”

At oral argument in October, when pressed to overrule the Insular Cases, Justice Stephen Breyer—who wrote the opinion for the court on Monday—conceded that the Insular Cases loomed as “a dark cloud” over the case. But in the end, he agreed with Chief Justice John Roberts, who said at argument, “I just don’t see the pertinence of the Insular Cases.”

Notably, the chief justice and the court took a different approach with respect to another notoriously racist Supreme Court decision just two years earlier. In Trump v. Hawaii, the court’s five conservatives upheld the president’s executive order banning travel to the United States from multiple Muslim-majority countries. Writing for the court, Roberts reached out to overrule the infamous Korematsu v. United States, which upheld the internment of Japanese Americans during World War II. His action appeared to be a direct response to a powerful dissent by Justice Sonia Sotomayor, who drew harsh comparisons between his opinion upholding the travel ban and Korematsu.

Here, by contrast, Sotomayor was silent on the Insular Cases, both at oral argument and in her concurring opinion, even as she acknowledged that “territorial status should not be wielded as a talismanic opt out of prior … constitutional constraints.” Thus, there was no similar pressure on Breyer’s majority opinion to explicitly condemn the Insular Cases.

With this collective inaction and silence, the Supreme Court missed an important opportunity to announce what should already be obvious: The Insular Cases, like Korematsu, were gravely wrong the day they were decided, have been overruled in the court of history, and have no place under the Constitution. (Disclosure: One of us filed an amicus brief in this case urging the Supreme Court to overturn the Insular Cases.)

Sadly, unlike Korematsu, the Insular Cases have not been left for dead by lower courts.

Despite repeated Supreme Court statements (including today’s) implying that the Insular Cases must be read narrowly, too many lower courts continue to apply and even expand the Insular Cases to diminish the constitutional rights of our fellow Americans in U.S. territories.

Earlier this year, the U.S. Court of Appeals for the 3^rd Circuit relied on the Insular Cases in U.S. v. Baxter to rule that Fourth Amendment protections against warrantless search and seizures that apply everywhere else in the United States do not apply in the U.S. Virgin Islands and certain other territories. In Baxter, a drug-sniffing dog alerted law enforcement to a package that had been mailed from South Carolina to the U.S. Virgin Islands. The 3^rd Circuit conceded that, had that package instead been mailed to Hawaii, the District of Columbia, or even, inexplicably, Puerto Rico, U.S. Customs and Border Protection would have been required to obtain a warrant before opening the package. Obtaining a warrant under these circumstances is standard procedure throughout the United States and is not a significant burden on law enforcement.

Under the 3^rd Circuit’s ruling, however, the usual Fourth Amendment protections do not apply. Why? Because under the Insular Cases, the U.S. Virgin Islands is an unincorporated territory, and Congress has created a fictional “border” between the territory and the mainland United States. So no warrant is needed—no matter how easy it would be to obtain—and no probable cause required. This conflicts with the Supreme Court’s long-standing border-search exception to the Fourth Amendment, which reserves this kind of warrantless search for items entering the United States across a truly international border, not a domestic one.

The Insular Cases are also front and center in another case, Fitisemanu v. United States, as the U.S. Court of Appeals for the 10^th Circuit considers the federal government’s appeal of a historic decision by a Utah district court applying the citizenship clause of the Fourteenth Amendment to strike down a discriminatory federal statute that labels people born in American Samoa as “nationals, but not citizens, of the United States.” (American Samoa has been a U.S. territory since 1900 and has the highest rate of enlistment in the U.S. armed forces of any state or territory.) Lead plaintiff John Fitisemanu, born in American Samoa, has been a taxpaying, passport-holding resident of Utah for more than 20 years. But unless his case is resolved in the coming months, he will not be able to vote in November because the federal government unconstitutionally denies he is a citizen. The Insular Cases came into play because the U.S. Department of Justice is relying on them to make a particularly offensive argument: that people born in U.S. territories do not even have a constitutional right to citizenship. (Residents of Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands are recognized as birthright citizens by the federal government, but only based on congressional statute.)

The 10^th Circuit will have to decide whether to affirm the district court’s narrow reading of the Insular Cases or follow a dangerously expansive reading of the Insular Cases adopted by the U.S. Court of Appeals for the District of Columbia in a previous case, Tuaua v. United States. In Tuaua, the D.C. Circuit squarely relied on the Insular Cases to deny “the existence of a fundamental right to citizenship for persons born in the United States’ unincorporated territories.” The D.C. Circuit’s far-reaching reasoning calls into question the existence of many other constitutional rights in the territories, from marriage equality to the right to bear arms to freedom of speech and more. (Disclosure: One of us served as counsel for the plaintiffs in Fitisemanu and Tuaua.)

These are but two recent cases demonstrating the real-world consequences resulting from the Supreme Court’s continued refusal to overrule the Insular Cases. Given the court’s inaction today, we can expect some lower courts to continue eroding the enjoyment of constitutional rights in the territories. The Supreme Court missed a ripe opportunity to turn the page on the Insular Cases and extend the principle of equal justice under law to residents of U.S. territories. It is long past time to recognize that the Constitution protects all Americans equally, wherever they live.