The Supreme Court’s Subtle but Scary Refusal To Revisit the Insular Cases

July 18, 2016
Guest Post

by Stephen I. Vladeck, Professor, University of Texas School of Law 

*This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

None of the capsule summaries of the Supreme Court’s most recent Term will likely include the Justices’ June 9 ruling in Puerto Rico v. Sanchez Valle—in which a 6-2 majority held that Puerto Rico and the federal government are not separate sovereigns for purposes of the Fifth Amendment’s Double Jeopardy Clause, and so they cannot each prosecute the same person for the same criminal offense. Nor will even the most comprehensive assessments likely so much as mention the Court’s denial of certiorari, four days later, in Tuaua v. United States—in which the D.C. Circuit had held that individuals born in American Samoa are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment. But at the end of a Term with bigger headlines, and which may come to be seen more generally as the beginning of a new era, the reasoning in Sanchez Valle and the denial of certiorari in Tuaua highlight the Justices’ continuing unwillingness to revisit one of the more troubling chapters in the Court’s history—the early-twentieth century decisions known as the Insular Cases.

The Insular Cases refer to dozens of rulings (there’s disagreement as to exactly how many) handed down by the Supreme Court in the first decades of the twentieth century concerning the applicability (or lack thereof) of different constitutional provisions to those residing in the United States’ nascent “insular” possessions—territories such as Puerto Rico, the Philippines and even Panama (never mind that it’s not an island).

Although the Insular Cases cannot easily be summarized, the basic framework they articulated was to distinguish between how the Constitution applied in “incorporated” territories (i.e., territories “destined for statehood”) versus “unincorporated” territories—and to only apply the entire Constitution to the former. Whether specific provisions applied in the “unincorporated” territories turned on case-by-case assessments of whether the constitutional provision at issue was sufficiently “fundamental”—although, to be clear, the answer was usually “no.” Thus, constitutional protections ranging from the right to uniform import and export prices to the right to a jury trial in criminal cases were held inapplicable to many—if not most—of the United States’ new possessions, five of which (American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico and the U.S. Virgin Islands) continue to fly an American flag to this day.

As the leading academic experts on the Insular Cases explained in an amicus brief in Tuaua,

the Insular Cases’ approach to the constitutional status of the U.S. territories lacks any grounding in constitutional text, structure, or history. The Insular Cases, rather, reflected the assumptions of the time that the United States, like the great European powers of that era, must (despite being constrained by a written Constitution) be capable of acquiring overseas possessions without admitting their “uncivilized” and “savage” inhabitants of “alien races” to equal citizenship. That reasoning, even if it were constitutionally relevant, is the product of another age. It has no place in modern jurisprudence even if (as amici doubt) it had any validity in earlier times.

Indeed, it does not appear to have been a coincidence that the characteristic that tended to separate “incorporated” from “unincorporated” territories was the ethnic composition of their population—a fact that has led some, including a federal circuit judge, to decry the Insular Cases as among the more racist chapters in the Supreme Court’s history. And although the Court has seldom been presented with express opportunities to overrule the decisions that came to be known as the Insular Cases (Congress subsequently conferred many of the rejected constitutional protections upon the unincorporated territories by statute), numerous Justices have expressed skepticism about their continuing force—and a majority of the Court even suggested in 2008 that “It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen[ed] in ways that are of constitutional significance.”

It’s with that trend in mind that the reasoning of the majority opinion in Sanchez Valle and the denial of certiorari in Tuaua are so exasperating. In Sanchez Valle, Justice Elena Kagan’s majority opinion relied without hesitation on one of the Insular Cases for the proposition that “this Court concluded in the early decades of the last century that U.S. territories—including an earlier incarnation of Puerto Rico itself—are not sovereigns distinct from the United States,” even though Puerto Rico was subsequently authorized to, and did, ratify its own Constitution. Although Puerto Rico’s increasing autonomy may still be insufficient to render it a separate sovereign for double jeopardy purposes, the Supreme Court’s unflinching invocation of one of the Insular Cases in support of that conclusion was unfortunate, to say the least.

But the Court’s refusal to take up the Tuaua case is even more vexing. As I’ve explained in some detail elsewhere, the Court of Appeals’ decision wholeheartedly embraced the Insular Cases in refusing to apply the Fourteenth Amendment’s Citizenship Clause to American Samoa, even though none of the Insular Cases ever considered that specific constitutional provision. What’s more, given that the Citizenship Clause was meant to overrule the Supreme Court’s infamous decision in Dred Scott (which was, let’s remember, largely about the relationship between citizenship and federal territories), there are even stronger arguments against applying the general framework of the Insular Cases to a provision specifically intended and designed to eliminate race-based distinctions in citizenship.

Those arguments went unheeded by the D.C. Circuit, though, which unanimously held that the Citizenship Clause does not apply to American Samoa—and, in the process, not only embraced the Insular Cases, but also paved the way for Congress to scale back the rights it has voluntarily chosen to confer upon inhabitants of the other “insular” territories. And while it’s axiomatic that denials of certiorari have no precedential value, the Court of Appeals’ opinion certainly will be an important precedent going forward, not just for residents of the five insular territories but for the emerging questions concerning the Constitution’s applicability to anyone—citizens and non-citizens alike—overseas. By leaving the D.C. Circuit’s decision wholly intact, and by relying upon the Insular Cases’ mentality in one of its merits decisions, the Supreme Court’s October 2015 Term may, among other things, represent an enormous missed opportunity on the Justices’ part to right one of the Court’s more egregious historical wrongs.