Supreme Court petition to overrule Insular Cases gets boost from eight amicus briefs
Following the lead of Justices Neil Gorsuch and Sonia Sotomayor, who in April called on the Supreme Court to overrule the controversial Insular Cases in “an appropriate case,” a politically and ideologically diverse array of “friends of the court” filed eight amicus briefs calling on the Court to take up Fitisemanu v United States and do just that. The Biden-Harris Administration and a divided panel of the Tenth Circuit have relied on the Insular Cases to deny that the Fourteenth Amendment’s guarantee of birthright citizenship applies to people born in US territories. In April, John Fitisemanu—who is denied recognition as a US citizen by a discriminatory federal law based on his birth in American Samoa—petitioned the US Supreme Court to take up his case, recognize him as a US citizen, and overrule the Insular Cases.
“It is rare these days to see people from different political or ideological backgrounds agreeing on anything. So we are encouraged to see both Republicans and Democrats, Conservatives and Liberals, come together to support turning the page on the Insular Cases and the colonial framework they established,” said Neil Weare, president and founder of Equally American, which advocates for equality and civil rights for the 3.6 million residents of US territories, 98% of whom are people of color. “These briefs will not just give the Supreme Court a lot to think about, but hopefully the Biden-Harris administration as well as they consider whether to continue embracing the Supreme Court’s racist decisions in the Insular Cases,” Weare added.
A bipartisan group of current and former elected officials in Puerto Rico, Guam, the US Virgin Islands, and the Northern Mariana Islands argue that it is time for the Supreme Court to overrule the Insular Cases and recognize that those born in US territories have a constitutional right to be recognized as US citizens. They also address concerns raised by elected officials in American Samoa, demonstrating based on the experiences of each of their territories that recognition of citizenship does not threaten self-determination or the protection of land and culture.
The brief is joined by members of both the Republican and Democratic parties and both of Puerto Rico’s two major parties, the New Progressive Party and Popular Democratic Party. Amici include Delegate Stacey Plaskett (D) of the US Virgin Islands, Delegate Michael F.Q. San Nicolas (D) of Guam, former Puerto Rican Governors Aníbal Acevedo Vilá (PDP, D) and Dr. Pedro Rosselló (NPP, D), former Guam Governor Carl T.C. Gutierrez (D), former Virgin Island Governors Kenneth E. Mapp (D) and John de Jongh (D), former Delegate Donna M. Christian-Christensen (D) of the USVirgin Islands, former Guam Lt. Governor Kaleo Moylan (D), Vice-Speaker Tina Rose Muña Barnes (D) of the Guam Legislature), Representative Sheila Jack Babauta (D) of the CNMI House of Representatives, and former Senate President of Puerto Rico Eduardo Bhatia (PDP, D). Amici are represented by Covington.
“It is time that the Supreme Court, President Biden, and Congress condemn the Insular Cases as inconsistent with the Constitution and who we are as a Nation. This condemnation would be the same condemnation as has been given to several other rulings of that time period which created many race alienating and dehumanizing policies,” said Stacey Plaskett, who represents the US Virgin Islands as a non-voting member of Congress. “In 2022 people born in the US Virgin Islands and other territories should live in perpetuation limbo as to whether Congress could deny them recognition as US citizens.”
“It’s time for the Supreme Court to overrule the Insular Cases and recognize that people born on Guam and other territories have the same right to citizenship as anyone else born on US soil,” said Michael F.Q. San Nicolas, who represents Guam as a non-voting member of Congress.
An ideological diverse array of citizenship scholars argue that the Supreme Court should recognize that the Constitution’s guarantee of birthright citizenship extends to people born in US territories, as made clear based on the common law principle of jus soli enshrined in the Fourteenth Amendment.
Amici include Professors Sam Erman (USC Law), Michael Ramsey (San Diego Law), Linda S. Bosniak (Rutgers Law), Stella Burch Elias (Iowa Law), Kristin Collins (Boston Law), Christopher R. Green (Mississippi Law), Torrie Hester (St. Louis University), Linda K. Kerber (Iowa), D. Carolina Núñez (BYU Law), Nathan Perl-Rosenthal (USC), Polly J. Price (Emory Law), Lucy E. Salyer (New Hampshire), Rogers M. Smith (Pennsylvania), Katherine R. Unterman (Texas A&M), Charles R. Venator-Santiago (Connecticut), Ryan C. Williams (Boston Law). Amici are represented by Sidley.
“As a matter of original understanding, it is clear that the Fourteenth Amendment guarantees a right to US citizenship to people born in US territories. And it is long past time that the Supreme Court dispel any doubts to the contrary,” said Michael Ramsey, Professor of Law at University of San Diego, author of “Originalism and Birthright Citizenship” published in the Georgetown Law Journal.
Leading scholars on the Insular Cases from a diverse array of ideological perspectives argue that the Supreme Court should grant review of Fitisemanu in order to overrule the Insular Cases, arguing that those cases “lack any basis in the Constitution” and “rest on offensive notions of racial inferiority.”
Amici include Law Professors Christina Duffy Ponsa-Kraus (Columbia), Gary Lawson (Boston University), Guy-Uriel Emmanuel Charles (Harvard), Rafael Cox Alomar (University of the District of Columbia), Luis Fuentes-Rohwer (Indiana University Bloomington), J. Andrew Kent (Fordham), Sanford Levinson (University of Texas), Stephen I. Vladeck (University of Texas). Amici are represented by WilmerHale.
Lynn M. Jackson, the great-great-granddaughter of Dred and Harriet Scott, and Belinda Torres-Mary, the great-granddaughter of Isabel Gonzalez, call on the Supreme Court to take up Fitisemanu in order to avoid repeating the mistakes of the past. In Dred Scott v Sandford, the Supreme Court created a judicial exception to the American guarantee of birthright citizenship to deny citizenship to African Americans. In Gonzales v Williams, the Supreme Court avoided recognizing Puerto Ricans as citizens, enabling the political branches to deny a right to citizenship for those born in US territories. Amici are represented by Hogan Lovells.
“The Supreme Court has the rare opportunity here to correct its mistakes in Dred Scott and Gonzales. Inaction by the Supreme Court now would repeat the errors of those cases and perpetuate the idea that there can be racial limits on US citizenship,” said Neal Katyal, a Partner at Hogan Lovells, who represents Ms. Jackson and Ms. Torres-Mary. Mr. Katyal is the former Acting Solicitor General of the United States under President Barack Obama, and in that role confessed error on behalf of the US Justice Department for its role in the Korematsu and Hirabayashi cases.
Retired federal and local judges from Puerto Rico, Guam, and the US Virgin Islands argue that the Supreme Court should overrule the Insular Cases because they are “rooted in offensive racial stereotypes” and, based on their experiences, “unworkable in application.” Further, they emphasize that Supreme Court action is needed “to ensure that no judge serving in the territories will ever again be forced to apply a precedent that assumes that he or she belongs to a sub-class deserving of fewer constitutional protections.”
Amici include Retired Chief Justice B.J. Cruz (Supreme Court of Guam), Retired Chief Judge José Fusté (US District Court for the District of Puerto Rico), Former Judge Soraya Diase Coffelt (US Virgin Islands Superior Court); Retired Chief Judge Héctor Manuel Laffitte (US District Court for the District of Puerto Rico), Retired Chief Justice Liana Fiol Matta (Supreme Court of Puerto Rico), Retired Judge Adam G. Christian (US Virgin Islands Superior Court). Amici are represented by Holwell Shuster & Goldberg.
A dozen civil rights organizations argue that Fitisemanu “presents a rare opportunity to squarely address the Insular Cases and their deeply problematic ‘territorial incorporation doctrine.’” Amici include the American Civil Liberties Union, ACLU of Utah, Asian American Legal Defense and Education Fund, Autistic Self Advocacy Network, Brennan Center for Justice at NYU School of Law, Dēmos, Human Rights Campaign, Lambda Legal Defense and Education Fund, Inc., LatinoJustice PRLDEF, The Leadership Conference on Civil and Human Rights, OCA–Asian Pacific American Advocates, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
“The Insular Cases cannot be reconciled with the text or original understanding of the Constitution and represent a set of racist assumptions about residents of US territories that must be rejected. If the Court doesn’t act now to overrule the Insular Cases, it is not clear when it will have another chance,” said Adriel I. Cepeda-Derieux, Senior Staff Attorney at ACLU.
“Justice Sotomayor and Justice Gorsuch are right – the Insular Cases represent a shameful history of racist exclusion that we must forcefully reject as contrary to our basic democratic and constitutional ideals. It’s well past time for the Supreme Court to once and for all put a full stop to continued reliance in federal courts on this wrong-headed precedent that relegates too many to second-class citizenship,” said Lourdes M. Rosado, President and General Counsel of LatinoJustice PRLDEF.
The Virgin Islands Bar Association calls on the Supreme Court to overrule the Insular Cases and recognize that all people born in US territories have a right to citizenship that is not dependent on Congress. The brief emphasizes how overruling the Insular Cases would be consistent with principles of stare decisis set forth by the Supreme Court. Amici are represented by KutakRock LLP.
“People born in the US Virgin Islands should not have to worry whether Congress will one day decide to stop recognizing them as US citizens. The only reason this is even a question is because of a series of racist Supreme Court decisions known as the Insular Cases. It is long past time the Court overrules these cases.” said Alisha Udhwani, President of the VI Bar Association.
The Samoan Federation of America – one of the oldest Samoan community organizations in the US mainland, and a plaintiff in a similar prior lawsuit – are calling on the Supreme Court to recognize people born in American Samoa as US citizens in order to bring an end to harms American Samoans face as a result of the century-long imposition of non-citizen US national status by the US government. Amici are represented by Orrick.
“As a result of a long history of discrimination by the federal government, American Samoans are citizens of nowhere even as they have the highest rate of military service of any American community. This isn’t just un-American, it’s unconstitutional,” said Michelle Mataese, President of the Samoan Federation.
The Biden-Harris Administration is set to respond to the Fitisemanu petition on June 30, 2022. Members of Congress and prominent civil rights organizations have called on the Biden-Harris Justice Department to condemn the Insular Cases. The US House of Representatives is also considering a House Resolution condemning the Insular Cases, holding the first-ever congressional hearing on the Insular Cases last year.
The Supreme Court is expected to consider whether to grant review of Fitisemanu later this year.