The following column is the opinion and analysis of the writer.
The Supreme Court will rule on several important civil rights cases this term, and based on oral argument, the justices seem likely to hand down rulings harmful to the immigrant and LGBT communities. What’s worse, the Court’s past does little to assuage that fear.
For much of American history, the justices have not been pillars of justice. Though the abject errors of Dred Scott, which in 1857 upheld slavery, and Plessy v. Ferguson, which in 1896 sanctioned “separate but equal,” have been reversed, the Court has elsewhere sustained past prejudices. In few ways is that more evident than in a group of early 20th century cases that remain on the books today — and that right now are the subject of congressional intervention.
Soon after the Spanish-American War ended, the Supreme Court heard half a dozen suits, referred to as the “insular cases,” probing the extent to which the Constitution and U.S. law applied to newly acquired territories. A divided court held time and again that the constitutional protections enjoyed by those on the mainland were not to be possessed by the people of Guam, Puerto Rico, the Philippines and beyond. Comparing the territorial inhabitants in 1901 to “savages” who may not be “capable of self-government,” the Court affirmed a bigoted and ethnocentric ideology. The insular cases still stand as settled law.
Several members of Congress rightly want the cases definitively rejected — or at least want to send a message that such bigotry is harmful to the national interest. Rep. Raúl Grijalva (D-03) and a dozen colleagues have introduced a resolution condemning the holdings of the insular cases and their legacy, asserting that they rest on the same racist assumptions that led to the Plessy “separate but equal” doctrine. The resolution denounces the cases’ application to present and future litigation.
As the resolution’s sponsors know, the Supreme Court cannot invalidate a prior holding until it hears a related case. But in the absence of judicial action, Rep. Grijalva and his co-sponsors are declaring that an unjust system based on racist and imperialist assumptions should not stand.
It’s not difficult to see the cases’ legacy march on. As recently as 1980, the Court held in Harris v. Rosario that the federal programs can be funded less generously in U.S. territories than in U.S. states, which today translates into a justification for reimbursing territories for Medicaid claims at lower rates than states, creating a perennially underfunded health care system for territorial residents.
More chillingly, we should ask ourselves to what extent the notion that territories are not “fully part” of the U.S. contributed to the insufficient amount of federal aid to Puerto Rico in the aftermath of 2017’s Hurricane Maria. It took far too many months to repair the power grid, reopen roads and hospitals and restore access to safe drinking water.
There was one 2018 episode at the Supreme Court that is both instructive here and that offers a glimmer of hope.
You may recall that in 1944, the Court shamefully ruled in Korematsu v. U.S. that President Franklin Roosevelt’s executive order forcibly interning Americans of Japanese descent was constitutional. At the end of the 2017-2018 term, Chief Justice John Roberts wrote that “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.” Perhaps ironic in the context of a case affirming President Trump’s infamous “Muslim ban,” but at least Roberts appears open to the possibility of correcting past errors.
Hopefully, the Supreme Court will find an opportunity to condemn, if not overturn outright, the insular cases.
Hopefully, Congress will vote on the Grijalva resolution. Regardless, it’s incumbent upon us as citizens to recognize that, even today, the Court’s jurisprudence is marred by a checkered past.
Despite the belief that the Supreme Court has largely been a just and disinterested arbiter, the institution’s long history of condoning segregation, inequality and racist principles should stand as a warning — and better prepare us for whatever decisions come in the future.
Dylan Hosmer-Quint is the research associate of Fix the Court, a national nonpartisan organization that advocates for greater transparency and accountability in the federal judiciary.