The United States Solicitor General continued to argue that the Supreme Court should not reconsider or overrule 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. Filing in response to a petition for certiorari in Fitisemanu v. United States—a case examining whether Congress can deny birthright citizenship in US territories—the Solicitor General argued that the Supreme Court should not take up “whether the Insular Cases should be overruled.” While insisting its argument “does not rest on [the Insular Cases] framework,” the Justice Department continues its embrace of their doctrine that the Constitution applies “only in part” in so-called “unincorporated” territories. Further, it continues citing Downes v. Bidwell, the most prominent of the Insular Cases, to argue that people born in US territories have no constitutional right to be recognized as US citizens.
The administration’s decision follows a pattern from 2021 of embracing the racist decisions.
“It is shocking that the Biden-Harris Administration and the Solicitor General continue to breathe life into the Insular Cases, which were grounded in a vision of white supremacy that has no place in our society, much less briefs filed by the US Justice Department,” said Neil Weare, president, and founder of Equally American, a nonprofit that advocates for equal rights in US territories. Equally American represents the Fitisemanu plaintiffs along with attorneys at Gibson, Dunn, & Crutcher LLP and American Samoan Attorney Charles V. Ala’ilima. Last month, the Fitisemanu plaintiffs wrote Solicitor General Elizabeth Prelogar requesting that she support rather than oppose their calls for the Supreme Court to overrule the Insular Cases. “Ultimately though it is the Supreme Court, not the Justice Department, that will have the final say on whether the Insular Cases and the colonial framework they established remain ‘good law’ today,” Weare added.
The Solicitor General’s filing comes just months after Justices Neil Gorsuch and Sonia Sotomayor both expressed “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,” with Sotomayor recognizing that the Insular Cases “were premised on beliefs both odious and wrong.”
It also follows a broad campaign to urge the Biden-Harris Administration to support rather than oppose calls to overrule the Insular Cases.
In July, Equally American, LatinoJustice PRLDEF, ACLU, and former Acting Solicitor General Neal Katyal held a press conference calling attention to the Justice Department’s continued embrace of the Insular Cases. That followed a letter earlier this year from LatinoJustice PRLDEF, ACLU, and other national civil rights groups calling on Attorney General Merrick Garland and Solicitor General Prelogar to publicly condemn the Insular Cases. In their letter, the civil rights groups 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.”
“The Biden-Harris Administration should have taken on the archaic and offensive Insular Cases that have been used to prop up the colonial status quo in US territories, instead of sidestepping the issue in their response to the petition on this case, and letting this hateful precedent stand,” said Lourdes M. Rosado, President and General Counsel of LatinoJustice PRLDEF, which also joined a civil rights amicus brief urging the Supreme Court to finally overrule the Insular Cases. “We hope that the Supreme Court will nonetheless follow the lead of Justice Sotomayor and Justice Gorsuch to finally turn the page on the Insular Cases and the discredited notions of white supremacy they were grounded in.”
“The Solicitor General’s decision to oppose overruling the racist Insular Cases simply cannot be squared with the values that underlie our Constitution, or for that matter, those professed by the Biden-Harris Administration,” said David Cole, National Legal Director of ACLU, which joined the letter and authored the civil rights brief in Fitisemanu. “We sincerely hope that the Court will nonetheless take up the opportunity to at long last overturn the Insular Cases, which remain a stain on our constitutional jurisprudence.”
Members of Congress from the Congressional Black Caucus, Congressional Hispanic Caucus, and Congressional Asian Pacific American Caucus also urged President Joe Biden and Vice President Kamala Harris to support rather than oppose calls to overrule the Insular Cases in a letter last month. The letter reminded them how it was just last year that President Biden 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.”
“While I am tremendously disappointed to see the Solicitor General and Attorney General continue defending the racist and colonial Insular Cases, I remain hopeful that the Supreme Court will not shirk away from reckoning with how its decisions in these cases contradict America’s most foundational principles,” said US Virgin Islands Delegate Stacey Plaskett, who co-led the letter and was an original co-sponsor of House Resolution 279, which condemns any continued reliance on the Insular Cases.
“The Biden administration’s continued defense of the Insular Cases is completely out of step with where our country should be going when it comes to addressing systemic racism and white supremacy,” said House Resources Committee Chair Raúl Grijalva, who introduced H.Res. 279 and co-led the letter to President Biden. “Now it’s up to the Supreme Court and Congress to step up and make clear that racial discrimination and colonialism have no place in our country.”
The Supreme Court is expected to vote on whether to take up Fitisemanu and the question of the Insular Cases this Fall.