The CP is distinct - Vaello Madero’s case only concerns the equal protection clause – overruling it wouldn’t fundamentally change the imperial relationship between the US and Puerto Rico

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.

This workaround, too, has proven as ineffectual as it is inappropriate. Perhaps this Court can continue to drain the Insular Cases of some of their poison by declaring provision after provision of the Constitution “fundamental” and thus operative in “unincorporated” Territories. But even one hundred years on, that pitiable job remains unfinished. Still today under this Court’s cases we are asked to believe that the right to a trial by jury remains insufficiently “fundamental” to apply to some 3 million U. S. citizens in “unincorporated” Puerto Rico. At the same time, the full panoply of constitutional rights apparently applies on the Palmyra Atoll, an uninhabited patch of land in the Pacific Ocean, because it represents our Nation’s only remaining “incorporated” Territory.3 It is an implausible and embarrassing state of affairs.

The case before us only defers a long overdue reckoning. Rather than ask the Court to overrule the Insular Cases, both sides in this litigation work from the shared premise that the equal protection guarantee under which Mr. Vaello Madero brings his claim is a “fundamental” feature of the Constitution and thus applies in “unincorporated” Territories like Puerto Rico. See Tr. of Oral Arg. 10–11; Brief for United States 12. Proceeding on the parties’ shared premise, the Court applies the Constitution and holds that the conduct challenged here does not offend its terms. All that may obviate the necessity of overruling the Insular Cases today. But it should not obscure what we know to be true about their errors, and in an appropriate case I hope the Court will soon recognize that the Constitution’s application should never turn on a governmental concession or the misguided framework of the Insular Cases. Asked why he dissented in those cases year after year, Justice Harlan replied that “‘no question can be settled until settled right.’” Coudert 842. We should settle this question right.

To be sure, settling this question right would raise difficult new ones. Cases would no longer turn on the fictions of the Insular Cases but on the terms of the Constitution itself. Disputes are sure to arise about exactly which of its individual provisions applies in the Territories and how. Some of these new questions may prove hard to resolve. But at least they would be the right questions. And at least courts would employ legally justified tools to answer them, including not just the Constitution’s text and its original understanding but the Nation’s historical practices (or at least those uninfected by the Insular Cases). See Fitisemanu, 1 F. 4th, at 883 (Tymkovich, C. J., concurring); see also NLRB v. Noel Canning, 573 U. S. 513, 525 (2014); id., at 572–574, and n. 1 (Scalia, J., dissenting); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 13–21 (2019). Nor, in any event, can the difficulty of the task supply an excuse for neglecting it.

Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less.