Insular Cases are key to institutional credibility AND preventing volatile controversy about the courts

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.