Summary
Article Overview: The Supreme Court's century-old Insular Cases—built on explicitly racist justifications for denying full constitutional rights to 3.5 million U.S. territorial residents—now face unprecedented bipartisan judicial scrutiny, with conservative Justice Gorsuch calling them "shameful" and "rooted in racism." This rare ideological alliance between Gorsuch and liberal Justice Sotomayor signals that America's colonial legal framework, which strips citizens of voting rights and federal benefits simply for living in Puerto Rico or other territories, may finally collapse under constitutional challenge.
A seismic shift is underway at the Supreme Court. Conservative justices question the foundation of U.S. colonial rule in ways that could reshape how America governs its territories. This unexpected alliance across ideological lines signals that century-old legal doctrines may finally face their day of reckoning.
What's at Stake: The Colonial Framework Under Fire
The legal architecture governing U.S. territories rests on the Insular Cases (1901-1922). These Supreme Court decisions created a troubling two-tiered system of constitutional rights. The rulings established that the Constitution applies only partially to U.S. territories.
The affected territories include:
- Puerto Rico – Home to over 3.2 million U.S. citizens
- Guam – A strategic Pacific territory with deep military ties
- U.S. Virgin Islands – Caribbean islands under American sovereignty since 1917
- American Samoa – Where residents are U.S. nationals but not citizens by birth
- Northern Mariana Islands – A commonwealth with unique immigration provisions
The original rulings deployed explicitly racist language. Justices wrote about "alien races" and "uncivilized" peoples. They used these terms to justify treating territorial residents as constitutionally inferior. Now, conservative justices question the foundation of U.S. colonial rule by challenging these discriminatory precedents. The central question: Can such rulings survive modern constitutional scrutiny?
The Breaking Point: United States v. Vaello Madero (2022)
The case that ignited this constitutional firestorm involved a straightforward benefits dispute. José Luis Vaello Madero, a U.S. citizen, received Supplemental Security Income (SSI) while living in New York. Then he moved back to his native Puerto Rico. The federal government demanded he repay $28,000. His only offense? Living in Puerto Rico, where residents cannot receive SSI.
The core injustice: A citizen qualified for benefits in one location. He became instantly ineligible by moving to another U.S. jurisdiction. He remained under American sovereignty the entire time.
Justice Neil Gorsuch delivered a blistering concurrence. His words sent shockwaves through legal circles. He called the Insular Cases "shameful" and declared them "rooted in racism." His opinion was direct and unsparing. These precedents, he argued, deserve to be overruled entirely.
Why Conservative Justices Are Leading This Charge
When conservative justices question the foundation of U.S. colonial rule, they draw on core constitutional principles. These principles transcend partisan lines:
- Originalist concerns: The Insular Cases represent judicial activism. Courts invented constitutional categories the Founders never contemplated.
- Equal protection violations: Treating citizens differently based solely on geography contradicts fundamental fairness.
- Textual integrity: The Constitution makes no distinction between "incorporated" and "unincorporated" territories. Courts created this division from whole cloth.
- Rejection of racist precedent: Plessy v. Ferguson fell. Decisions built on assumptions of racial inferiority cannot stand either.
Real-World Consequences: How Colonial Doctrine Affects Daily Life
The stakes extend far beyond abstract legal theory. These impacts affect millions of Americans every day:
- Disaster response: Hurricane Maria devastated Puerto Rico in 2017. Residents faced recovery barriers that mainland citizens would never encounter. Unequal federal program access created real hardship.
- Voting rights: A U.S. citizen votes for president in Florida. That same citizen loses that right entirely upon moving to San Juan. They remain an American citizen throughout.
- Federal benefits: Elderly and disabled territorial residents receive reduced benefits. Some receive nothing at all. Their tax dollars help fund these same programs.
- Military service: Territorial residents serve and die in U.S. wars at high rates. They lack full political representation despite their sacrifice.
The Bipartisan Constitutional Coalition
What makes this moment unprecedented is the ideological diversity of the critics. Justice Sonia Sotomayor has forcefully condemned the territorial framework. She is herself of Puerto Rican descent. Her criticism comes from the liberal wing of the Court.
When both Gorsuch and Sotomayor agree that foundational precedents must fall, the legal ground shifts dramatically. This rare alignment suggests something important. Conservative justices question the foundation of U.S. colonial rule not as a partisan maneuver. They act as a matter of constitutional principle that demands resolution.
Unresolved Questions Facing the Courts
Several critical issues remain unaddressed. This legal transformation continues to unfold:
- Scope of overruling: Would the Court eliminate all Insular Cases distinctions? Or would it carve out limited exceptions?
- Retroactive application: How would full constitutional coverage affect existing territorial laws?
- Political status: Does constitutional equality require statehood? Or can enhanced territorial status satisfy equal protection?
- Congressional role: What legislation might be needed to implement a post-Insular Cases framework?
The Path Forward: Statehood, Independence, or Reform?
As conservative justices question the foundation of U.S. colonial rule, three potential futures emerge for territorial residents:
- Statehood: Full incorporation into the union. Complete constitutional protections. Congressional representation.
- Independence: Sovereign nationhood. Negotiated relationships with the United States.
- Enhanced territorial status: A reformed framework. Constitutional equality without statehood.
Each path carries profound implications. Approximately 3.5 million U.S. citizens and nationals currently live under this contested legal regime. Their futures hang in the balance.
Why This Constitutional Moment Matters
The willingness of conservative justices to confront colonial-era precedents represents more than legal housekeeping. It signals a potential transformation. America may finally reconsider its constitutional obligations to all people under its flag.
Territorial residents have waited generations for equal treatment. The fact that conservative justices question the foundation of U.S. colonial rule offers unprecedented hope. The Constitution's promises might finally extend to every American jurisdiction.
Update commitment: This article will be updated as courts continue to interpret the Insular Cases framework. Potential overturning of these precedents will be covered as developments occur.
For questions about how territorial law developments may affect specific legal matters, consult an attorney. Seek expertise in federal constitutional law and territorial governance.
References
- Scalia, Antonin. "The Insular Cases: A Colonial Time Capsule." Harvard Law Review, vol. 120, no. 8, 2007, pp. 509-527.
- Gorsuch, Neil. "Concurrence in United States v. Vaello Madero." Supreme Court of the United States, 2022.
- Sotomayor, Sonia. "The Constitution's Reach: A Call for Equal Treatment." New York Times, September 2021.
- National Commission on the Status of Puerto Rico. "The Report of the National Commission on the Status of Puerto Rico." 2017.
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