In the coming days, the United States Solicitor General’s office will have to answer a question it has tried hard to avoid: whether it supports or opposes overruling the Insular Cases, a series of racist decisions from the era of Plessy v. Ferguson that established a doctrine of “separate and unequal” for the 3.6 million residents of US territories—98% of whom are people of color. The Supreme Court has given the Solicitor General until Monday, August 29 to respond to a petition by plaintiffs in Fitisemanu v. United States – a case examining whether Congress can deny birthright citizenship in US territories—that squarely asks the Court to consider “whether the Insular Cases should be overruled.”
The Fitisemanu petition was filed just a week after statements in United States v. Vaello Madero by Justices Neil Gorsuch and Sonia Sotomayor expressing “hope [that] the Court will soon recognize that the Constitution’s application should never depend on …the misguided framework of the Insular Cases.” Gorsuch declared that the Insular Cases “deserve no place in our law” because they “have no foundation in the Constitution and rest instead on racial stereotype,” citing the Fitismanu case several times. Sotomayor similarly recognized that the Insular Cases “were premised on beliefs both odious and wrong.”
These unequivocal statements by Justices on opposite sides of the Court’s ideological divide came after an oral argument where Justice Gorsuch repeatedly pressed Deputy Solicitor General Curtis Gannon “What is the government’s position on the Insular Cases?” While Gannon acknowledged “that some of the reasoning and rhetoric [of the Insular Cases] is obviously anathema,” he declined to directly answer the question. Instead, he discouraged the Supreme Court from taking action to overrule the Insular Cases.
Last month, the Fitisemanu plaintiffs wrote Solicitor General Elizabeth Prelogar requesting that she support rather than oppose calls for the Supreme Court to overrule the Insular Cases.
“President Biden and the Department of Justice have a chance here to be on the right side of history, to stand true to the values they profess – we hope they take it,” said Neil Weare, president, and founder of Equally American, a nonprofit that advocates for equal rights in US territories and represents the Fitisemanu plaintiffs along with attorneys at Gibson, Dunn, & Crutcher LLP and American Samoan Attorney Charles V. Ala’ilima. “The Insular Cases should not be relied on as the basis for denying birthright citizenship in US territories, or any other right.”
In the past, President Biden has made strong statements in support of equality in US territories. As members of the Congressional Black Caucus, Congressional Hispanic Caucus, and Congressional Asian Pacific American Caucus reminded him last month in a letter requesting that he condemn the Insular Cases, it was just last year that he declared in reaction to ongoing discrimination against residents of US territories in federal benefits programs “that there can be no second-class citizens in the United States of America.”
“The Biden Administration and indeed the Democratic platform has called repeatedly for greater inclusion of the territories in the fabric of this country. It would be a contradiction of that position should the Solicitor General’s office rely on racist language from the Insular Cases to argue against a right to citizenship in US territories,” said US Virgin Islands Delegate Stacey Plaskett (D), who co-led the letter. “It is well past time for the federal government and the Biden Administration to stop the empty rhetoric and even worse, stop utilizing racist Plessy v Ferguson-era Supreme Court cases to effectively keep the citizens of the territory in a perpetual state of second-class citizenship.”
“No branch of the federal government should be giving refuge to the Insular Cases and the dangerous form of white supremacy they embraced in 2022,” said US House Committee on Natural Resources Chair Raúl Grijalva (D), who also co-led the letter and introduced HRes 279, which condemns any continued reliance on the Insular Cases to deny equality in US territories.
President Biden and Attorney General Merrick Garland have also put forward that advancing racial justice and rejecting white supremacy, represent core values of the Biden-Harris Administration. In a letter earlier this year calling on Attorney General Merrick Garland and Solicitor General Prelogar to publicly condemn the Insular Cases, the ACLU, LatinoJusticePRLDEF, the Hispanic Federation, and other prominent civil rights organizations highlighted how President Biden had emphasized when he took office that “this nation and its government need to change their whole approach to the issue of racial . . . equity.” They also noted how Attorney General Garland stressed during his confirmation hearing that “we do not yet have equal justice” because “[c]ommunities of color and other minorities still face discrimination.”
“Standing up for racial equity means taking a stand for communities of color everywhere in the United States, including US territories. If President Biden is serious about dismantling systemic racism, his administration should reject the Insular Cases and the colonial framework they established,” said ACLU Senior Staff Attorney Alejandro Ortiz, who served as counsel of record in an amicus brief filed on behalf of civil rights organizations calling on the Supreme Court to take up Fitisemanu in order to overrule the Insular Cases.
If Attorney General Garland is going to fight for equal justice for communities of color, DOJ should unequivocally repudiate the flawed reasoning and blatant racial bias of the Insular Cases,” said LatinoJustice Senior Counsel Lía Fiol-Matta, who was the keynote speaker earlier this year at the Columbia Human Rights Law Review’s symposium “Future of the Insular Cases.”
Equally American has also created an online petition where residents of US territories and others can call on the Biden-Harris Administration to condemn the Insular Cases and express their views on how it makes them feel that the Insular Cases have yet to be overruled. That survey is available at overruletheinsularcases.org.
The Supreme Court is expected to vote on whether to take up Fitisemanu and the question of the Insular Cases this Fall.