The U.S. Supreme Court has a number of old decisions that the justices no longer apply because time and the nation’s understanding of constitutional principles such as due process and equal protection have eroded the foundations of those decisions. Still, when given the opportunity, the justices don’t overrule them and they linger in the shadows ready to rise again should the right combination of events and justices surface.
One example of a precedent that many of the justices repudiated over time but had not overruled explicitly was Korematsu v. United States. In 1944, the court, in a 6-3 vote, upheld the detention of Japanese Americans during World War II. The Korematsu decision came out of the shadows in 2018 when the justices were examining the Trump Administration’s Muslim travel ban.
A 5-4 majority upheld the travel ban but Justice Sonia Sotomayor, in her dissenting opinion, said the majority was travelling the same path that led to the the “sordid legacy” of the Korematsu decision. In his majority opinion, Chief Justice John Roberts Jr. responded to Sotomayor by saying the Korematsu decision was “morally repugnant” and had been “overruled in the court of history.”
Roberts’ comments were welcome news to the many who have criticized that decision over the years, especially to the heirs of Japanese Americans who were imprisoned during that period. But Roberts did not use the magic words, “We overrule….”
Little over a week ago, Justice Neil Gorsuch called out his colleagues on a group of old precedents which were built, he said, on a “rotten foundation” of racial stereotypes. He called for overruling the Insular Cases as soon as an appropriate case raising them came before the court.
The Insular Cases were a series of decisions by the justices beginning in 1901 concerning the constitutional rights of residents of U.S. territories acquired in the Treaty of Paris ending the Spanish- American War. The territories were Puerto Rico, Guam, and the Philippines, and eventually the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands.
The territory residents were not granted full constitutional rights and protections and the court’s decisions rested a distinction between incorporated and unincorporated territories and on beliefs that territory residents were “alien races,” “savages,” and “uncivilized.”
Gorsuch devoted his concurring opinion in United States v. Vaello Madero to the history of the Insular Cases and why they have to be overruled. The case before the justices actually was about whether a U.S. citizen, who moved back to his native Puerto Rico to be closer to family, could continue to receive his supplemental security benefits while living in Puerto Rico. The court’s 6-3 majority said no.
Gorsuch wrote: “The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.”
Gorsuch said the court has admitted “discomfort” with the Insular Cases, but instead of dealing with that directly, it has “devised a workaround” which, in effect, leaves the Insular Cases on the books. Because the cases haven’t been overruled, lower courts continue to apply them.
“To be sure, settling this question right would raise difficult new ones,” Gorsuch wrote. “Cases would no longer turn on the fictions of the Insular Cases but on the terms of the Constitution itself. Disputes are sure to arise about exactly which of its individual provisions applies in the Territories and how. Some of these new questions may prove hard to resolve. But at least they would be the right questions. And at least courts would employ legally justified tools to answer them, including not just the Constitution’s text and its original understanding but the Nation’s historical practices (or at least those uninfected by the Insular Cases).”
In February, 13 civil rights organizations sent a letter to U.S. Attorney General Merrick Garland and U.S. Solicitor General Elizabeth Prelogar in which they asked the Justice Department officials to denounce the Insular Cases and refuse to rely on them in cases involving the government.
The Justice Department has relied on the Insular Cases recently. In Fitsemanu v. United States, a group of American Samoans challenged a federal law that denies birthright citizenship to persons born in the U.S. Territory of American Samoa, declaring them to be "nationals" not "citizens" of the United States. They unsuccessfully argued that the 14th Amendment’s Citizenship Clause explicitly states that those born “in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The U.S. Court of Appeals for the Tenth Circuit last year ruled against the American Samoans. Their lawyer has filed a petition for review in the U.S. Supreme Court.
"If the parties ask the Supreme Court to review the Tenth Circuit’s decision, DOJ will be called on to more directly articulate its position on the Insular Cases," the civil rights groups wrote in their letter. "It should use this opportunity to expressly reject any continued reliance on the Insular Cases to answer the question of citizenship for people born in U.S. territories, or to deny residents of these areas any other constitutional rights."
Gorsuch concluded his opinion on the Insular Cases by saying the time has come to recognize that those cases “rest on a rotten foundation. And I hope the day comes soon when the court squarely overrules them.”
The Supreme Court may get that opportunity as early as next term if it decides to take up the challenge by the American Samoans.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
