The Supreme Court Just Passed Up a Chance to Overrule Appallingly Racist Precedents – By Kyla Eastling, Danny Li, and Neil Weare (Slate) / June 1 2020
The Supreme Court just can’t seem to quit the Insular Cases, a series of controversial decisions from the era of Plessy v. Ferguson that established a doctrine of “separate and unequal” status that has justified denying basic constitutional rights and protections to the nearly 4 million Americans living in Puerto Rico and other U.S. territories.
On Monday, the Supreme Court unanimously upheld the constitutionality of the Financial Oversight and Management Board for Puerto Rico—an undemocratic, federally appointed body with near-total authority over Puerto Rico’s budget and finances. In doing so, the court once again avoided the opportunity to finally overrule the Insular Cases. Parties on both sides called on the court to expunge this shameful remnant of America’s imperialist past from our body of constitutional law. Yet the most the court could muster was an acknowledgment that the Insular Cases are “much criticized” and that “whatever their continued validity,” the justices “will not extend them in these cases.”
It’s easy to see why the justices would distance themselves from the Insular Cases. Issued at the height of America’s imperialist expansion in the early 20th century, these controversial decisions broke from prior precedent to create the doctrine of territorial incorporation, allowing Congress to govern residents of so-called unincorporated territories outside the usual constitutional limitations on its power. The expressly stated justification for this discriminatory doctrine was the racist belief that these newly acquired overseas territories were populated by “alien races” and “savages” who could not comprehend American “Anglo-Saxon principles.”
Lower courts continue to expand the Insular Cases to diminish the constitutional rights of Americans in U.S. territories.
At oral argument in October, when pressed to overrule the Insular Cases, Justice Stephen Breyer—who wrote the opinion for the court on Monday—conceded that the Insular Cases loomed as “a dark cloud” over the case. But in the end, he agreed with Chief Justice John Roberts, who said at argument, “I just don’t see the pertinence of the Insular Cases.”