Fourteen civil rights and civil liberties organizations, including the American Civil Liberties Union, the Brennan Center for Justice and an array of groups focused on the Latinx, Asian, LGBT and other communities have written Attorney General Merrick Garland and Solicitor General Elizabeth Prelogar, asking the Justice Department to reject the “Insular Cases.” Those cases, decided over a century ago by the U.S. Supreme Court, are openly racist in their arguments and set up second-class citizenship in the U.S. territories.
“There comes a time when certain prior U.S. Supreme Court decisions are recognized as falling so far outside the canon of accepted law that they become utterly discredited as sound doctrine upon which responsible advocates can rely,” their Feb. 10 letter says.
“The Insular Cases, as you know, are a line of Supreme Court cases that held that the ‘alien races’ and ‘savage tribes’ in Guam, Puerto Rico, and other U.S. territories acquired as a result of the Spanish-American War were not entitled to the same constitutional rights and protections afforded to residents of the states, nor were they on a path to full political participation,” it continues.
“Like the infamous Plessy v. Ferguson, which justified ‘separate but equal’ racial segregation, and Korematsu v. United States, which endorsed the mass incarceration of Japanese Americans during World War II, the Insular Cases represent a shameful legacy in our Nation’s history,” it says, before calling on the Justice Department to publicly condemn the Insular Cases and bring an end to any reliance on them in future court filings.
There was a chance to argue to overturn them not long ago in Vaello-Madero, with several Supreme Court justices questioning whether those decisions needed to be revisited. But the Justice Department instead urged the court to avoid addressing them.
“DOJ’s embrace of the Insular Cases and the racist doctrine they represent, while simultaneously acknowledging their reasoning as ‘obviously anathema,’ contravenes this administration’s stated views on racial justice. It is unacceptable for the DOJ to endorse or acquiesce in the perpetuation of a doctrine that was historically intended to enable race-based discrimination against the residents of U.S. territories,” the authors argue.