Supreme Court Justice Neil Gorsuch Argues ‘Racist’ Decisions Against Puerto Ricans Should Be Overturned

Topline

Supreme Court Justice Neil Gorsuch called for the court Thursday to overturn a series of landmark decisions from the early 1900s that deprived residents of U.S. territories from having full constitutional rights — potentially paving the way for Puerto Rico and other territorial residents to have their rights expanded.

A protester holds a Puerto Rican flag during a demonstration in San Juan, Puerto Rico on January 23, … [+] 2020.

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Key Facts

Gorsuch made the remarks in an opinion he issued Thursday in a case focused on a Puerto Rican resident, United States v. Vaello Madero, in which the court found that residents of Puerto Rico are ineligible to receive Social Security benefits, an opinion with which Gorsuch agreed.

In a concurring opinion, Gorsuch wrote that the court should use a future case to overturn the Insular Cases, a series of Supreme Court opinions issued in the early 1900s which decided that people residing in territories aren’t entitled to full constitutional rights, often for racist reasons such as the territories being “inhabited by alien races” who shouldn’t be governed “according to Anglo-Saxon principles.”

In his opinion, Gorsuch said the Insular Cases have “shameful” flaws and “deserve no place in our law.”

Should the cases be overturned, that could pave the way for territorial residents to have expanded rights like voting powers and representation in Congress, along with financial benefits like Social Security.

The cases have so far not been overturned and presidential administrations have defended the precedents in court, Slate notes, though the Justice Department acknowledged in oral arguments for the Social Security case “that some of the reasoning and rhetoric [behind the rulings] is obviously anathema” and “has been for decades, if not from the outset.”

Crucial Quote

“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution,” Gorsuch wrote. “It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes.”

What To Watch For

Whether any action will be taken against the Insular Cases. Civil rights groups urged the Biden administration in February to publicly condemn the Insular Cases and not rely on them for any future court cases, and a House resolution has been pending since March 2021 that would disavow the rulings. The court may get a chance to take up the issue of whether to overturn the rulings in Fitisemanu v. United States, a case concerning whether citizens of American Samoa are also U.S. citizens. An appeals court ruled that American Samoans are not citizens using the Insular Cases, so the Supreme Court could consider whether those rulings should be overturned if the case gets appealed to them.

Tangent

Justice Sonia Sotomayor agreed with Gorsuch’s opinion in her dissent against the Social Security ruling and his statement that it’s “past time” for the court to renounce its precedent in the Insular Cases. “Those cases were premised on beliefs both odious and wrong, and I share the concurrence’s ‘hope [that] the Court will soon recognize that the Constitution’s application should never depend on … the misguided framework of the Insular Cases,’” Sotomayor wrote.

Key Background

The Insular Cases were decided in the early 1900s after the Spanish American War, which gave the U.S. control of Puerto Rico, Guam and the Philippines (which became an independent nation in 1946). Downes v. Bidwell declared Puerto Rico wasn’t going to be “incorporated” into the U.S. like other territories on a path to statehood and thus shouldn’t be covered by the Constitution, for instance, while Balzac v. Puerto Rico in 1922 determined that people in territories were only guaranteed “fundamental” rights under the Constitution and not entitled to all of its protections. Puerto Rico is now considered a commonwealth of the U.S.—which is a more “highly developed relationship” with the U.S. than regular territories like Guam and American Samoa—and its residents are U.S. citizens, though they still lack congressional representation, the right to vote in presidential elections and are exempted from federal taxes. The court ruled in United States v. Vaello Madero that the commonwealth’s tax status means there’s a “rational basis” for ruling residents aren’t entitled to Social Security benefits, given that they don’t pay federal income, estate or other taxes. Madero had brought the case after being denied Social Security benefits after moving to Puerto Rico from New York, which he argued violated the Constitution’s equal protection clause. The case did not concern the Insular Cases directly. Only Sotomayor, whose parents are from Puerto Rico, dissented from the ruling, writing that Congress should not discriminate against some U.S. citizens just by virtue of their location. “In my view, there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others,” Sotomayor wrote.

Supreme Court Justice Neil Gorsuch Argues ‘Racist’ Decisions Against Puerto Ricans Should Be Overturned—Here’s What That Could Mean