Supreme Court

Why Won't the Biden Administration Join Gorsuch in Seeking To Overrule These Racist SCOTUS Precedents?

The Insular Cases “rest on a rotten foundation,” Gorsuch wrote.


Between 1901 and 1904, the U.S. Supreme Court decided a series of cases, collectively known as the Insular Cases, which asked whether the Constitution should fully apply to the residents of Puerto Rico and other territories recently acquired by the U.S. after its victory in the Spanish-American War. The Court held that the Constitution did not fully apply in those U.S.-held territories.

The Insular Cases have been severely criticized—then and now—for being the product of racist and imperialist thinking. The legal scholar Walter F. Pratt Jr., author of The Insular Cases: The Role of the Judiciary in American Expansionism, described the legal arguments involved as "largely racially motivated," since the Court effectively held that "the people of the new territories were unfit to become citizens."

A similar criticism of the Insular Cases was recently voiced by Justice Neil Gorsuch, who argued that "the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law."

Gorsuch's characterization is apt. Take the case Dorr v. United States (1904), which asked whether the constitutional right to trial by jury should exist in the Philippines. The Court said no, observing that "the uncivilized parts of the archipelago were wholly unfitted to exercise the right of trial by jury."

In other words, it was racism and imperialism in the guise of a Supreme Court opinion.

Gorsuch also added his voice to those calling for the Insular Cases to be wiped off the books. "The time has come to recognize that the Insular Cases rest on a rotten foundation," Gorsuch wrote. "And I hope the day comes soon when the Court squarely overrules them."

Alas, the Department of Justice under President Joe Biden apparently sees things differently. As The Washington Post's Robert Barnes recently reported, "the Biden administration told the Supreme Court Monday that it should not take up a case [Fitisemanu v. United States] about citizenship rights for American Samoa even though advocates say it would give justices a chance to upend a series of century-old precedents that have been roundly denounced as racist."

Unsurprisingly, the Biden administration's stance has come under fire. "Advocates were disappointed that [Solicitor General Elizabeth] Prelogar asked the high court not to take the case," the Post notes. "'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 U.S. Justice Department,' said Neil Weare, president and founder of Equally American, which advocates for equal rights in U.S. territories."

To say the least, Gorsuch has probably not been described as "woke" very often. But he sure seems more ready to act against systemic government racism in this case than the liberal Biden administration does.