Overruling Fitisemanu presents a better path to overturning the insular cases.
Ponsa-kraus '22 [Christina Duffy; George Welwood Murray Professor of Legal History, Columbia Law School; "The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories; The Yale Law Journal; pp. 2537-2538; https://www.law.columbia.edu/sites/default/files/2022-07/Insular%20Cases%20Run%20Amok.pdf; ror]
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.