Government

As Unjust As They Are, The Insular Cases Are Still 'Good Law.' The ABA Is Pushing For SCOTUS To Change That.

Justice White really had a bone to pick back then huh.

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Constitution constitutional law We the PeopleSome events and ways of thinking get outdated quickly. Take technology for example. Today’s computers can sit on the top of your lap…now I see why they’re called that! A couple decades ago, computers were so big you needed a whole room to house them. Before that, a computer was some dude with an abacus. You get my point, Progress progresses progressively faster. That said, there are a few occasions in life where decisions and events from a century ago feel like current events. A couple of those occasions,  a series of early 1900 decisions grouped together and known as the Insular Cases, are a combination of history, racism, and law that still have far reaching consequences for people living in American territories.

The Insular Cases essentially grant Congress the power to pick and choose which constitutional rights it confers to residents of the territories, in some cases including natives of the states or the District of Columbia who reside in a territory.

Those limitations range from Samoa’s citizenship status to implementation of Supreme Court decisions — gay marriage, for example, is not valid in American Samoa despite the Obergefell v. Hodges decision — to limitations on federal social programs, like Medicaid.

The racial reasoning that animates the decisions are so bad that they sound more like the ravings of a drunk uncle than the nuanced opinions of a nation’s highest and most legitimate court:

Surprisingly and thankfully, there already seems to be some support from the sitting justices for undoing some virulent racism:

In a concurring opinion on an 8-1 ruling against the right of Puerto Ricans to receive Supplemental Security Income in May, Justice Neil Gorsuch wrote that “the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

It’s not as easy as doing the right thing, you know. I’d like to think that the Court would take the opportunity to re-evaluate the series of decisions, but who knows how it would turn out if it did? Clarence Thomas has shown more than a little disregard for racism in legal decision making, like that time he decided that making sure Black people weren’t part of juries was totally normal and fine. Not to mention that doing a racism is very in line with this nation’s deeply rooted history and traditions, this series of cases has been around for 120 years after all — that’s 24 times longer than the Confederacy was a thing!

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That said, not everyone is agreed when it comes to overturning the Insular Cases:

An indigenous rights group in the Northern Mariana Islands, for instance, opposes repealing the Insular Cases because its members fear that change could end land ownership restrictions that favor natives of the territory, the Pacific Daily News reported.

And opposition from the government of American Samoa was a key element in a 10th Circuit Court decision against the plaintiffs in the Fitisemanu case.

“It is evident that the wishes of the territory’s democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship and urge us not to impose citizenship on an unwilling people from a courthouse thousands of miles away, have not been taken into adequate consideration,” wrote Judge Carlos Lucero, an appointee of former President Clinton, in the 10th Circuit decision.

Is it possible to address the concerns the cases centered on without the racist rhetoric? Or is a logic of dehumanization and paternalism so inherent to the original reasoning that to do away with one part of it would shatter whatever else remains? Time will tell.

Supreme Court Faces New Pressure To Reconsider Racist ‘Insular Cases’ [The Hill]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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