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1. Descriptive Statistics Passage of Years to Overrule a Precedent: How long do overruled precedents last? My sample contained 205 pairs of overruled and overruling precedents. Table 1.1 shows the longevity of overruled precedents in years.' 44 The range in Table 1.1 was 1 to 138 years. Overruled precedents lasted a mean of 29.11 years and median of twenty years. Table 1.2 compares the longevity of overruled precedents in Sidney Ulmer's 1959 study and my analysis. The main finding is that more precedents had a shorter duration in Ulmer's study, with 64% of overruled cases occurring within twenty years compared to 51% in my study. Some caveats must be noted in this comparison. My sample contained overruled cases that were decided before Ulmer's study. The fact that I had the benefit of a powerful online research tool may explain why Ulmer missed some cases. Also, the differences in our data could be due to sampling bias by Ulmer, or both of us. One or both of us could improperly include or exclude overruled cases. It is important to note that Ulmer did his research in the late 1950s. This was only twenty years or so after the Supreme Court experienced a major upheaval in commerce clause cases. Thus, the longer-lasting precedents that I report in 2014 could be due to period effects stemming from the different times we collected data.

What would happen then? While there is growing consensus that the Insular Cases stand on par with Plessy in their grotesque use of the rule of law to constitutionalize racism, white supremacy, and colonialism, a host of questions remains with respect to the viability of their revocability. To start, what does it mean to overrule the Insular Cases? Is it at all possible to completely abrogate the decisions that are usually grouped together under that shorthand? What about partially? And perhaps most importantly, what weight would the Court give the decisions’ longstanding status as “good law”?

Indeed, if the Supreme Court takes up a case that squarely puts territorial incorporation in the balance, the fact that leading Insular Cases decisions, such as Downes v. Bidwell, are well over a century old will surely weigh heavily. Stare decisis—“fidelity to precedent” 31 —will put a thumb on the scales against overruling territorial incorporation. Even if a majority of the Court is willing to hold that the territorial incorporation doctrine is ill-reasoned (it is), the Court—and, more likely, advocates arguing against for its repeal—will have to wrestle with that doctrine. Arguments against territorial incorporation will have to grapple with the well-understood notion that “the respect accorded prior decisions increases, rather than decreases, with their antiquity . . . .”32 And experience shows that however illreasoned the Insular Cases may be, judicial reverence (or inertia) might be a powerful counterweight to their repeal.33

Strong consensus does not immunize a precedent forever;' 6° however, it tends to extend a precedent's life. 61 When Justices overrule a recent precedent decided by a large majority, they admit that they carry a heavy burden to justify their action. 162 These explanations do not necessarily mollify or persuade Justices who disagree with the overruling majority. 63 Other times, a dissenting opinion from an early case is cited to explain why a precedent should not be overruled. 64 Additionally, there are cases where the votes for a precedent have such a muddled meaning that Justices do not even agree whether they are overruling a precedent.165

Dissonance and confusion do nothing to inspire confidence in the law. There is something fundamentally wrong when -as I report here - half of the Court's overruled precedents survive twenty years or less. To the extent that a concurring opinion or dissenting vote perpetuates a Justice's reputation or public persona, or signals a think tank or interest group, or indulges a personal fancy, or reserves an issue for a future case, or cements the Justice's place in history as a swing voter or great dissenter, these judicial vanities infect precedents with dysfunction. The better approach is to reinvigorate the Court's consensual norms.166

This line of thought involves conceptualizing citizens as embodied, as fleshly, in a more encompassing way than existing vocabularies like trust and care. As mentioned earlier, the subject of trust theory is decidedly disembodied, marking a serious limitation in its scope and usefulness. Notably, second generation care ethicists put embodiment on the political agenda, but they dealt only with quite specific aspects of embodiment – typically those to do with bodily maintenance and nurturance, such as elder care and child care (Beasley and Bacchi, 2005; Bacchi and Beasley, 2005). Yet, caring practices are only one part of the complex and interweaving layers of interconnection that characterize contemporary social relations. Visions of ethical community require, in our view, a more expansive conception of embodied intersubjectivity. We are precisely looking for a better way of gripping together the corporeal and the sociopolitical – of grasping simultaneously the sociality of flesh and the physicality of social life.

Insisting upon our common and collective intersubjective embodiment marks a different ethical moment. It shifts the focus from those constituted as dependent to human embodied interconnection. The challenge theoretically is to maintain this insight and not to lapse into versions of sociality that construct some groups as needy and dependent while ‘independent’ others attend to their ‘needs’.

This third grouping explicitly attacks ‘the abstract model of rational, price-taking economic man and free markets’ (Szreter, 2002: 607). However, the emphasis in this analysis is on improving the nature of the interaction between ‘the needy’ or ‘less fortunate’ (Szreter, 2002: 600) and institutions with which they must necessarily deal, rather than on challenging hierarchy itself. To this end, Szreter (2002) insists that social relations must be ‘respectful’ before trust can be generated. Similarly, Richard Sennett (2003) pursues the importance of respect as a starting place for egalitarian politics. Importantly, a positive step is taken here by redirecting attention from the character deficits of the ‘needy’, assumed to be problematic by Putnam and Fukuyama, to those of the privileged. The rich, according to Szreter and Woolcock (2004: 656), must learn to recognize the plight of the ‘less fortunate’ and to react sympathetically. If they do not do this, the rich bear responsibility for the alienation and resultant lack of trust amongst those who are less well off.

It is clear from this discussion that trust and respect appear as core theoretical concepts across a broad spectrum of political beliefs. However, even those like Szreter, Woolcock and Sennett, who explicitly contest neoliberal premises about independent rational actors, reinstate social hierarchy between the ‘less fortunate’ and the ‘more privileged’. Indeed, Szreter (2002: 595; emphasis added) states explicitly that ‘social capital can only flourish where a society sufficiently embraces the values of egalitarianism combined with order and hierarchy’. Sennett (2003: 59, 98, 261) also condemns what he calls ‘radical egalitarians’, and states repeatedly that ‘there are unavoidable inequalities’. Even in these Bourdieu-inspired, more progressive versions of social capital, therefore, the fate of liberal democracy, as in Putnam, Fukuyama and Krygier, is bound up at the last with the ‘quality of citizens’ (Berkowitz, 1999; Wallach, 2000: 169).

In a 40-page opinion authored by Chief Justice John Roberts ’76, all six members of the Court’s conservative wing ruled that Harvard’s and UNC’s admissions programs violated the Equal Protection Clause of the 14th Amendment.

The Equal Protection Clause of the Fourteenth Amendment states that all U.S. citizens must receive “equal protection of the laws” and that their “privileges or immunities” cannot be curtailed without due process of law.

With the passage of time, this Court has come to admit discomfort with the Insular Cases. See Reid v. Covert, 354 U. S. 1, 14 (1957) (plurality opinion); Financial Oversight and Mgmt. Bd. for Puerto Rico v. Aurelius Investment, LLC, 590 U. S. ___, ___–___ (2020) (slip op., at 21–22). But instead of confronting their errors directly, this Court has devised a workaround. Employing the specious logic of the Insular Cases, the Court has proceeded to declare “fundamental”—and thus applicable even to “unincorporated” Territories—more and more of the Constitution’s guarantees. See S. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Texas L. Rev. 1, 241–243 (2002) (collecting cases).

That solution is no solution. It leaves the Insular Cases on the books. Lower courts continue to feel constrained to apply their terms. See, e.g., Fitisemanu v. United States, 1 F. 4th 862, 873 (CA10 2021); Tuaua v. United States, 788 F. 3d 300, 306–307 (CADC 2015). And the fictions of the Insular Cases on which this workaround depends are just that. What provision of the Constitution could any judge rightly declare less than fundamental? On what basis could any judge profess the right to draw distinctions between incorporated and unincorporated Territories, terms nowhere mentioned in the Constitution and which in the past have turned on bigotry? There are no good answers to these bad questions.

The Supreme Court’s decision today that the race-conscious admissions programs as practiced at the University of North Carolina at Chapel Hill and Harvard—the nation’s oldest public and private universities, respectively—are unconstitutional upends more than four decades of precedent on the use of race in college admissions. The decision could have major implications for the country’s approach to the Fourteenth Amendment’s promise of “equal protection of the laws.” Meanwhile, its consequences for diversity at institutions of higher education are far from clear.

In a 40-page opinion, Chief Justice John Roberts, writing for the majority, argued that the institutions violated the equal-protection clause of the Fourteenth Amendment of the Constitution by failing to use race “within the confines of narrow restrictions outlined by the court.” The programs, Roberts wrote, effectively require stereotyping of underrepresented minorities. “When a university admits students ‘on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike,’” Roberts wrote. He also pointed out that the Court has, in the past, suggested that such programs need a sunset date and lack a “logical endpoint.”

Justice Gorsuch also concurred, arguing that the Insular Cases52 should be overturned.53 After discussing the colonial history of the United States’s imperial acquisition of the territories,54 he explained that the Insular Cases’ theory that only unspecified, “fundamental” rights apply in unincorporated territories was based on the racist belief that the peoples of the newly acquired islands were racially or socially “unfit” for the Constitution.55 Justice Gorsuch argued that the Constitution does not distinguish between incorporated and unincorporated territories nor between fundamental and nonfundamental rights and does not “authorize[] judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.”56 Instead of overruling the Insular Cases, the Court has “drain[ed] . . . some of their poison” by declaring more and more rights fundamental, and thus applicable in unincorporated territories, but that solution is “as ineffectual as it is inappropriate,” as the task is still “unfinished” and lower courts are still constrained by the Insular Cases framework.57 Nonetheless, because the litigants in Vaello Madero agreed that Fifth Amendment equal protection is fundamental, and thus applicable in Puerto Rico, the case presented no opportunity to reconsider the Insular Cases and thus “defer[red] a long overdue reckoning.”58

Over 3.5 million Americans currently live in the United States territories, a number that is roughly equivalent to the populations of the five smallest states combined. These residents of Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands exist in a type of legal limbo—undoubtedly part of the United States, yet denied the full rights afforded to US citizens born in one of the 50 states. The legal basis for this system was established by the Supreme Court in the early 1900s when they ruled in the Insular Cases that the Constitution does not fully apply to “unincorporated” territories. While the Territory Clause of the Constitution allows for territorial incorporation, thereby enabling US settler colonialism, territory status was generally thought of as a temporary designation on the path to statehood. By inventing the term “unincorporated territory,” the court created an alternate pathway of indefinite colonial administration. Struggling to decide how to handle the large swaths of territory acquired after the Spanish-American War, the Court was heavily influenced by fears of non-white populations joining the country with Justice Brown warning in Downes v. Bidwell that “savages” and “alien races, differing from us” might become “entitled to all the rights, privileges and immunities of citizens.” While widely recognized as misguided and racist, the Insular Cases continue to subject the residents of the US territories, 98 percent of whom are “racial or ethnic minorities,” to second-class status.

The case of Fitisemanu v. United States, currently under review by the Supreme Court, offers the latest attempt to address this scar on our national history. The plaintiffs, three American Samoans living in Utah, argue that the Citizenship Clause of the 14th Amendment, guaranteeing citizenship to anyone “born or naturalized in the United States and subject to the jurisdiction thereof,” automatically grants citizenship to those born in the territories. While Congress has extended citizenship to the other four inhabited territories through legislation, American Samoans retain US national status and are prohibited from holding certain federal jobs or voting in elections even after establishing residency in a US state. The plaintiffs ask the court to formally overrule the Insular Cases, something that would have wide-reaching implications. Considering Justice Gorsuch’s argument in United States v Vaello Madero that the Insular Cases “deserve no place in our law” and Justice Sotomayor’s recent statement calling them “odious and wrong,” the Court increasingly appears ready to reject the legal basis for perpetual colonialism in the unincorporated territories.

Fortunately, there is a better path to overruling the Insular Cases at hand. The case is Fitisemanu, in which a petition for certiorari is currently pending before the Court.396 Fitisemanu cleanly presents the validity of the Insular Cases. While, as I have argued, they do not govern the result here, the doctrine of territorial incorporation is nevertheless squarely presented in Fitisemanu because it is the only reason the question in Fitisemanu—whether the Citizenship Clause includes unincorporated territories—is a question at all.397 Every Justice deciding Fitisemanu would have to take a position on the merits of the doctrine of territorial incorporation.

Occasions for overruling the Insular Cases are few and far between. The fact is that their holdings that certain constitutional provisions did not apply in the unincorporated territories turned out to be less consequential than their endorsement of permanent colonialism. But the clearest way for the Court to get at the latter is through a challenge raising the former—as Fitisemanu does. Any decision overruling the Insular Cases would be cause for celebration. But a resounding, and resoundingly unanimous, decision should not be too much to ask for. One hopes the Court will grant certiorari in Fitisemanu and deal those abhorrent decisions a long-overdue death blow.

Of relevance here, Congress must decide how to structure federal taxes and benefits for residents of the Territories. In doing so, Congress has long maintained federal tax and benefits programs for residents of Puerto Rico and the other Territories that differ in some respects from the federal tax and benefits programs for residents of the 50 States.

On the tax side, for example, residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes. See 39 Stat. 954, as amended, 48 U. S. C. §734; see, e.g., 26 U. S. C. §§933, 2209, 4081–4084. At the same time, residents of Puerto Rico generally pay Social Security, Medicare, and unemployment taxes. 26 U. S. C. §§3121(e), 3306(j).

Moreover, Vaello Madero’s position would usher in potentially far-reaching consequences. For one, Congress would presumably need to extend not just Supplemental Security Income but also many other federal benefits programs to residents of the Territories in the same way that those programs cover residents of the States. And if this Court were to require identical treatment on the benefits side, residents of the States could presumably insist that federal taxes be imposed on residents of Puerto Rico and other Territories in the same way that those taxes are imposed on residents of the States. Doing that, however, would inflict significant new financial burdens on residents of Puerto Rico, with serious implications for the Puerto Rican people and the Puerto Rican economy. The Constitution does not require that extreme outcome.*

Providing cash assistance to Guam’s elderly and people with disabilities could cause inflation here, according to the Justice Department, which argued it therefore is reasonable for Congress to deny Supplemental Security Income benefits to U.S. citizens living on Guam.

Denying local eligibility for SSI benefits also is reasonable because of the island’s unique tax relationship with the federal government, the Justice Department stated in a brief filed late last week with the U.S. Court of Appeals for the Ninth Circuit.

To be sure, the Insular Cases are historically notable because they put to rest a longstanding national controversy, blessed the expansionist agenda of the Republican Party, and established the ground rules of territorial governance.5 And there should be renewed interest today in the Insular Cases because those opinions (originally issued in 1901) have recently formed part of the legal edifice of the Court's landmark decision in Boumediene v Bush.6 As a matter of political theory, however, what is most striking about this episode in constitutional history is that the Court's intervention in the Insular Cases brought closure to a volatile national debate without provoking the public's backlash or damaging the Court's institutional credibility. Indeed, simply by agreeing to consider the cases, the Supreme Court positioned itself to answer profound issues that defined and divided the nation – and the manner in which the Court ultimately resolved the Insular Cases pronounced a clear winner on the question of American expansionism. Yet there were no serious charges of judicial activism, or sustained challenges either to the Court's authority to decide the cases or to the legitimacy of the decisions themselves. Both sides (warmly or grudgingly) accepted the Court's settlement, and the Insular Cases have remained good law ever since.7

Public and political acquiescence to the decisions is particularly remarkable because there was little cause at the time to expect it. The cases unmistakably implicated international affairs and foreign treaties, subjects in which the courts were expected not to meddle; in fact, many were aware of the "gravity of the issues at stake" and at first questioned the wisdom of the Supreme Court's involvement.9 Moreover, the issues presented by the Insular Cases bore a close resemblance to the kinds of political questions that courts, even in 1901, were forbidden to consider.10 It is true that each of the Insular Cases had been framed as an issue of statutory interpretation and positive law; but each also implicated a roiling political debate over American imperialism.11 In fact, the main question common to all the cases was one that traditionally had been decided by the country's political branches: whether specific territories like Puerto Rico were foreign or domestic.12 For these reasons, the Court could easily have declined to consider the cases, and its failure to do so arguably reinforces the fashionable perception that the Supreme Court of the Lochner era was comfortable injecting itself into extralegal controversies with significant policy and political dimensions.13 Despite all this, the Court's decision to interject – and the legitimacy of the Insular Cases themselves – has stood the test of time. This Article seeks to understand why.

Gonzalez 21 (Gonzalez, Alejandro J. Anselmi. J.D. Candidate @ the University of Miami, Received their B.A. In Poli Sci and Psychology from WashU, St. Louis. "The Flag Can Travel but the Constitution Must Ask Permission: How the First Circuit and the District for Puerto Rico Commit to Equal Protection without Abandoning the Insular Cases Doctrine." University of Miami Inter-American Law Review, vol. 53, no. 1, Winter/Spring 2021. HeinOnline. https://heinonline.org/HOL/Page?handle=hein.journals/unmialr53&collection=journals&id=97&startid=&endid=168. Accessed 7/24/23)

i. The First Circuit Indirectly Addresses the Relevance of the Insular Cases Through Its Treatment of Califano and Harris

“Equality” does not mean much on its own, as it may embody any number of different theories of equality. In part because of its history of slavery and Jim Crow, the United States has come to embrace a universalist notion of equality that calls for largely identical “bundles of basic rights and duties” across all citizens.161 For the most part, the United States’ theory of equality, as embodied in its jurisprudence, rejects entrenched differentiation among groups of citizens — “group differentiated rights”—as a legitimate long-term democratic arrangement.162 Or does it? While this universalist model of liberal republics has prevailed as a paradigm since World War II and dominates American rhetoric,163 certain groups—territorial residents and Native Americans, namely—have always occupied a space apart.164 I argue that while the assimilationist/universalist model of “equality” may be fair to govern (non-Indian) citizens of the States, group-differentiated rights are justifiable in the context of territorial peoples.

The argument that territorial peoples must be allowed “unequal” treatment in order to be equal begins with several premises: (1) territorial cultures are endangered by the application of universalist rights regimes,165 and (2) many of the territories did not seek or consent to, in a significant way, American sovereignty and membership in the American political order.166

Respect for local governance arrangements weighs heaviest in Tuaua, where the court suggested enforcing the Citizenship Clause in American Samoa would entail “the autocratic subjugation of free people”153 and the “forcible imposition of citizenship against the majoritarian will.”154 Accommodation of the Samoans’ desire to associate politically on their own terms is not merely one factor; it is dispositive on the question of whether enforcing the Citizenship Clause would be “anomalous,” “an irregular intrusion into the autonomy of Samoan democratic decision-making.”155 Accommodationist concerns—respecting local governance decisions and protecting local culture, no matter the constitutional deviation—are now at the heart of the Insular doctrine.156

The evolutions and contortions of doctrine, their ramifications and redefinitions in light of new congressional and executive policies, the adoption or mingling of a new functional test—all these worked to ratify the political branches’ latter-day policy of promoting self-governance in the territories and protecting their cultures, just as the weak natural-rights limitations espoused by the Insular Court would allow Congress a free hand to govern its colonies as it pleased. By propagating thin, notional limits on government action, yet never finding government conduct to exceed these limits, the Court retained a role to rein in the political branches should they ever go too far.157

The through-line connecting the Insular Cases to Justice Harlan to the “modern” cases is sovereign flexibility. At bottom, the courts ratified the goals and policies of Congress and the executive with respect to the territories. In the early twentieth century, the goal was empire: The government wanted maximum flexibility to expand American influence around the world.23 By the 1970s, these dubious aims had been replaced by “accommodationist” policies—encouraging local authority and self-governance in the territories to the greatest extent possible, while also seeking to protect local cultures.24

This Note argues that judicial ratification of the accommodationist project by the political branches is defensible, perhaps even imperative, from the perspective of democratic theory. Many of these territories did not choose to join the American constitutional regime; they need group-differentiated rights to have meaningful equality in the republican system, rights many of which were explicitly promised to them when they became subject to U.S. sovereignty.25 Hints of these arguments, I will show, play a role in the later courts’ decisions. To the extent the manipulable Insular doctrine permitted courts to bless the maximum devolution of local governance authority to territorial governments—by ignoring small-scale constitutional divergences—we should have fewer qualms with it. Only by going outside the Constitution—the same move that enabled the U.S. to rule the territories as colonies—could Congress delegate the requisite authority to these territories to govern themselves as they see fit.

“Equality” does not mean much on its own, as it may embody any number of different theories of equality. In part because of its history of slavery and Jim Crow, the United States has come to embrace a universalist notion of equality that calls for largely identical “bundles of basic rights and duties” across all citizens.161 For the most part, the United States’ theory of equality, as embodied in its jurisprudence, rejects entrenched differentiation among groups of citizens — “group differentiated rights”—as a legitimate long-term democratic arrangement.162 Or does it? While this universalist model of liberal republics has prevailed as a paradigm since World War II and dominates American rhetoric,163 certain groups—territorial residents and Native Americans, namely—have always occupied a space apart.164 I argue that while the assimilationist/universalist model of “equality” may be fair to govern (non-Indian) citizens of the States, group-differentiated rights are justifiable in the context of territorial peoples.

The argument that territorial peoples must be allowed “unequal” treatment in order to be equal begins with several premises: (1) territorial cultures are endangered by the application of universalist rights regimes,165 and (2) many of the territories did not seek or consent to, in a significant way, American sovereignty and membership in the American political order.166