WASHINGTON — Justice Neil M. Gorsuch last month issued a 10-page concurring opinion that amounted to a plea. The Supreme Court, he wrote, must discover a case by which to overrule a series of discredited decisions issued within the early 1900s that were based on racist assumptions and imperial ambitions.
The choices, referred to as the Insular Cases, said that some United States territories, like Puerto Rico and Guam, usually are not entitled to the entire Structure’s protections.
“The failings within the Insular Cases are as fundamental as they’re shameful,” Justice Gorsuch wrote, adding: “The Insular Cases haven’t any foundation within the Structure and rest as an alternative on racial stereotypes. They deserve no place in our law.”
The court, he wrote, should overrule those decisions in “an appropriate case.” He appeared to have one in mind. Last yr, the U.S. Court of Appeals for the tenth Circuit, in Denver, relied on the Insular Cases to reject birthright citizenship for people born in American Samoa.
Justice Gorsuch cited the choice, Fitisemanu v. United States, 3 times.
Last week, just six days after Justice Gorsuch issued his opinion, a petition asking the justices to review that ruling arrived on the Supreme Court. It asked the justices to make your mind up “whether the Insular Cases ought to be overruled.”
The Insular Cases, issued between 1901 and 1922, said so-called unincorporated territories had second-class status because, as one justice put it in 1901, they were “peopled with an uncivilized race” that was “absolutely unfit to receive” the “immediate bestowal of citizenship.”
American Samoa, made up of islands within the South Pacific, became a United States territory in 1900. Its residents live in a kind of constitutional limbo.
A federal law says that American Samoans are “nationals, but not residents, of the USA at birth” who nevertheless owe “everlasting allegiance to the USA.”
Because the petition put it, “they’re residents of nowhere.”
In the event that they move to other parts of the USA, they can’t vote in state or federal elections, serve on juries or be officers within the armed forces. They’ll serve within the military, though, and American Samoans have enlisted at a strikingly high rate.
Three men born in American Samoa who live in Utah sued to acquire citizenship, and Judge Clark Waddoups of the Federal District Court in Utah ruled of their favor. He rejected the federal government’s argument that the Structure doesn’t require birthright citizenship for people born in unincorporated territories and that “any treatment here must come from Congress, not the federal judiciary.”
Judge Waddoups also discounted the views of the federal government of American Samoa, which said citizenship shouldn’t be imposed over the desires of many residents who fear it could imperil their traditional cultural and spiritual practices.
The judge as an alternative ruled for the challengers, counting on the citizenship clause of the 14th Amendment, which says that “all individuals born or naturalized in the USA, and subject to the jurisdiction thereof, are residents of the USA.”
A divided three-judge panel of the U.S. Court of Appeals for the tenth Circuit reversed Judge Waddoups’s decision, citing the Insular Cases.
Judge Carlos F. Lucero, writing for almost all, acknowledged that the cases “have turn out to be controversial” and “are criticized as amounting to a license for further imperial expansion and having been based not less than partially on racist ideology.”
But Judge Lucero concluded that “the Insular Cases supply the proper framework for application of constitutional provisions to the unincorporated territories.” Under that framework, he wrote, the plaintiffs weren’t entitled to citizenship at birth as a constitutional right.
Congress is free to confer birthright citizenship on American Samoa, because it has on people born in Puerto Rico, Guam, the Northern Mariana Islands and the U.S. Virgin Islands. However the Structure, he wrote, is silent on the matter.
Judge Lucero added that it might be possible to “repurpose” the Insular Cases “to preserve the dignity and autonomy of the peoples of America’s overseas territories,” notably by protecting native culture and traditions.
But in his concurring opinion last month, Justice Gorsuch was skeptical of what he called “a revisionist account” as a matter of each logic and law.
“Attempts to repurpose the Insular Cases merely drape the worst of their logic in recent garb,” he wrote.
“At bottom,” Justice Gorsuch wrote, “the Structure’s restraints on federal power don’t activate a court’s unschooled assessment of a territory’s local customs or contemporary currents in public opinion or academic theory.”
Justice Gorsuch shouldn’t be alone in criticizing the Insular Cases. In a dissent in last month’s decision, which was concerning the availability of some Social Security advantages in Puerto Rico, Justice Sonia Sotomayor wrote that the cases were “premised on beliefs each odious and mistaken.” At a 2019 argument in a case arising from the Puerto Rican debt crisis, Justice Stephen G. Breyer said the cases had forged a “dark cloud.”
The Supreme Court has developed what Justice Gorsuch called a workaround to avoid the worst implications of the Insular Cases, ruling that almost all constitutional rights are so fundamental that they need to apply in all territories.
“That solution is not any solution,” he wrote. “It leaves the Insular Cases on the books.”