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Gorsuch Call to Overturn ‘Rotten’ Cases Tested by New Appeal

April 28, 2022, 4:18 PM

A case about birthright citizenship for residents of American Samoa could prompt the U.S. Supreme Court to reconsider longstanding rulings Justice Neil Gorsuch blasted as resting “on a rotten foundation.”

At issue are decisions known as the Insular Cases from the early 1900s that deprive Puerto Rico and other U.S. territories of full constitutional protections. Although the justices appear to no longer consider the decisions, which Gorsuch has previously said are based on “ugly racist stereotypes,” good law, lower federal courts continue to rely on them when dealing with U.S. territories.

The justices ruled 8-1 on April 21 in United States v. Vaello Madero that the federal government could continue to exclude Puerto Rico from a Social Security benefit program. Gorsuch joined the opinion after noting no party asked the justices to overrule the Insular Cases. Now, in a petition filed Wednesday, individuals seeking citizenship in the American Samoa case explicitly ask the court to do just that.

The American Samoa case, Fitisemanu v. United States, “is exactly the opportunity the court needs to reconsider the doctrine and overrule it,” said Columbia Law professor Christina Ponsa-Kraus.

Difficult to Overrule

Ponsa-Kraus said the Insular Cases endorsed permanent colonialism by differentiating between so-called incorporated and unincorporated territories.

Incorporated territories, which historically meant they were on their way to statehood, are entitled to full constitutional protections. Unincorporated territories like Puerto Rico and Guam are only entitled to certain “fundamental” protections like the right to challenge an unlawful detention.

The Insular Cases continue “to validate and legalize different treatment and subordination of the people living in the territories,” said Bufete Emmanuelli attorney Jessica Méndez Colberg, who unsuccessfully argued for the court to overturn them in 2019.

The justices in that case, Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC, said it didn’t have to reach that issue. They avoided it again in the latest case involving Puerto Rico decided April 21.

It is precisely because the court has questioned the validity of the reasoning in those cases, and therefore refused to expand them beyond their facts, that the issue of overruling the Insular Cases has been so difficult to get in front of the justices.

Repurposing The Doctrine

In the latest case, the U.S. Court of Appeals for the Tenth Circuit “repurposed” the Insular Cases in holding that the Constitution’s citizenship clause, which provides for citizenship for any individual born on American soil, doesn’t apply to American Samoa.

This “case is an appropriate vehicle to declare that the Insular Cases, like Korematsu and Plessy, were gravely wrong the day they were decided and have no place in law under the Constitution,” John Fitisemanu said in his brief filed Wednesday, referring to the court’s infamous rulings permitting Japanese internment camps during World War II and state-mandated segregation known as separate but equal.

Méndez Colberg said it “opens the door for these cases to finally be cast away and remember as a dark phase in judicial history.”

The U.S. Supreme Court declined to hear the identical issue in 2016 in Tuaua v. United States.

Gorsuch’s View

Gorsuch, who joined the court a year after it declined to hear the Tuaua case, has emerged as a potential ally, notably calling out what he sees as racist legacies affecting both American Indians and U.S. territories.

In an argument about tribal sovereignty on Wednesday, for example, Gorsuch admonished Oklahoma’s counsel for seemingly giving short shrift to the state’s acrimonious history with the tribes within its borders.

“Counsel, it’s easy enough to say that standing at the podium in Washington, D.C.,” Gorsuch said. “But the history and the reality should stare us all in the face.”

It’s the latest tribal case where Gorsuch could part ways from his five fellow conservatives by seeking to hold federal and state governments to their promises in what he sees as recompense for past behavior.

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” Gorsuch wrote for a 5-4 majority in an antecedent case about tribal sovereignty. “To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

Changed Landscape

Ponsa-Kraus said the American Samoa case shows how “lower courts have continued to rely on them and develop them and expend them in cases involving the territories,” she said.

She plans to file a friend-of-the-court brief urging the justices to take up the American Samoa cases and has participated in similar cases before the justices.

Ponsa-Kraus says “it’s important that the court overturn them, in order to reject their racist message and to reject the constitutionalization of permanent colonies that they stand for.”

But, she noted that territories like Puerto Rico will still have to litigate cases over what constitutional rights belong to them. “The work will not yet be done in the struggle for equality for the territories.”

The case is Fitisemanu v. United States, U.S., filed 4/27/22.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at