The plan doesn’t grapple with the root cause of territorial exceptionalism which reproduces violence – lack of limits on political branches follows logics of Korematsu and judicial clickbait.

Before attempting to reorient the conversation on judicial engagement with U.S. territories’ constitutional limbo, Part IV describes the ways in which contemporary calls for judicial intervention remain undertheorized. An overriding focus on getting the Court to formally overturn the Insular Cases’ racist logic has yielded little in the way of workable frameworks for whatever comes next. Through the lens of contemporary calls for the Insular Cases’ judicial overthrow, this Part explores the harms that ill-considered judicial engagement—even if well intentioned—stands to visit on territorial communities. Distilling key lessons from all that has yet to be observed about Aurelius, this Part challenges those who read that case principally as a missed opportunity.

In recent years, many of the loudest calls for judicial intervention in the Insular Cases suffer from—and indeed invite—the same analytical problem observed in Aurelius. Employing a similarly warped frame to paint the constitutional developments of U.S. empire as a relic or aberration, those who pushed hardest for the Court to overturn the Insular Cases in Aurelius—and have criticized it for failing to do so—do not appear to appreciate either the numerous ways in which territorial exceptionalism and the manipulation of legal ambiguity can survive without the Insular Cases, or the risks such interventions pose for the path-dependent legal interests that have grown around those indefensible rulings.

This Part begins by examining some prevailing threads among those who pushed the Aurelius Court to overthrow the Insular Cases, and then looks ahead to Fitisemanu v. United States, a case pending certiorari before the Supreme Court that illuminates the many problems with inviting those same interventions in Aurelius’s wake.

A. The Insular Cases and Aurelius: Avoiding the Korematsu Trap

Perhaps the most prominent voice urging the Court to overrule the Insular Cases in Aurelius, the American Civil Liberties Union, filed a brief alongside its Puerto Rico chapter that urged the following: “As it did in Trump v. Hawaii, . . . where the Court went out of its way to overrule Korematsu v. United States . . . because of that decision’s express racist assumptions, so, too, here, the Court should lay the Insular Cases to rest.”249 Describing the Insular Cases as an expungable “stain” on the Court’s jurisprudence “long ‘overruled in the court of history,’”250 it embraced Trump v. Hawaii as an invitation to reach beyond Aurelius’s merits to symbolically declare as much. It did so even as it admitted that “reaffirming the limits” of those decisions “would be sufficient to resolve th[e] case.”251

At oral argument, counsel for Puerto Rico’s electrical union (UTIER)—who devoted her entire allotted time to urging the Court to overturn the Insular Cases—similarly invoked Korematsu, noting that “last [T]erm, [the] Court went ahead and overruled the [Korematsu] case” even though the Court “said that [Korematsu] had nothing to do with the Trump versus Hawaii case.”252 She stressed that the circumstances attending Trump v. Hawaii were “[t]he same here with the Insular Cases,” insisting that Aurelius presented “the perfect opportunity to address them.”253 Commentators have also criticized the Aurelius Court for not taking this path, accusing the Justices of “perpetuat[ing] ‘gravely injurious’ discriminatory treatment rooted in ‘dangerous stereotypes’”254 by “fail[ing] to overrule this similarly ‘morally repugnant’ series of cases.”255 This commentary has endorsed the reading of the Insular Cases as a “relic,” one that is both “historically and juridically, an episode of the dead past.”256 These arguments, echoed by numerous others with respect to Aurelius, have since been taken further in the current Supreme Court Term by amici in United States v. Vaello Madero, a case that raises questions of territorial governance but in which no party has asked the Court to engage directly with the Insular Cases. 257

To properly tease out the many problems with this presentation of the Insular Cases and its questionable assumptions about the likely effects of blunt judicial intervention, it is critical to take a closer look at what exactly the Court did with Korematsu in Trump v. Hawaii. There, a 5-4 majority upheld the President’s highly controversial “travel ban,” an executive order temporarily suspending the entry of foreign nationals from a handful of predominantly Muslim countries.258 The case was arguably the most prominent constitutional litigation of the Trump presidency, with the Court’s decision sparking sizable protests in D.C., New York, Portland, and Atlanta.259

Recognized alongside Dred Scott v. Sandford260 and Plessy v. Ferguson261 as part of the core trilogy comprising the American constitutional “anticanon,”262 Korematsu upheld the presidential removal order that would relocate more than one hundred thousand Japanese Americans to internment camps across the western United States on account of “pressing public necessity.”263Korematsu, of course, features prominently in the study and teaching of American constitutional law and is widely considered one of the Supreme Court’s worst decisions.264

Notably, the Trump v. Hawaii majority overruled Korematsu immediately after declaring that “Korematsu has nothing to do with this case.”265 In fact, the Court’s eventual pronouncement that Korematsu was “gravely wrong the day it was decided”266 came only in response to Justice Sotomayor’s dissent, which assailed the “stark parallels between the reasoning of [the majority] and that of Korematsu.”267 Specifically, Sotomayor connected the manner in which the two cases appeared to “invoke[] an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion.”268 And so, despite rejecting Sotomayor’s parallels between Trump and Korematsu as “wholly inapt,”269 the majority indulged the invitation to reach beyond its conception of the merits, noting that “[t]he dissent’s reference” that “afford[ed] this Court the opportunity to make express what [was] already obvious: 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 the law under the Constitution.’”270

Thus, those who ushered the Aurelius Court towards Trump v. Hawaii were technically correct that, as a doctrinal matter, the merits of the travel ban did not run directly through Korematsu. Channeling the Chief Justice’s view that “Korematsu has nothing to do with this case,”271 these advocates understandably saw the potential for a similar move to sweep the Insular Cases into the Court’s crosshairs even as the FOMB’s lawyers had abandoned their reliance on them. But in doing so, they failed to appreciate how the Trump v. Hawaii majority artificially restricted Korematsu to its facts, treating it as a discrete doctrinal device whose operative significance belonged only to the specific historical context of wartime hostilities with Japan. In other words: a relic.

Accordingly, while the Court formally and symbolically overruled Korematsu, the majority did not reckon with the specific contours of the decision, and in particular, the modes of racialized thinking that were essential to its result. The Court summarily discarded Korematsu without any examination of that which unites it conceptually with Trump v. Hawaii—or with Dred Scott, Plessy, and other anticanonical decisions the Court has formally banished to history. Instead, the majority articulated the concrete legal significance of overruling Korematsu as simply that “forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”272

Trump v. Hawaii’s treatment of Korematsu is troubling even to some of Korematsu’s most outspoken critics. Between the Court’s cursory and benign account of Korematsu’s reasoning and its refusal to acknowledge connectivity to law beyond its facts, the Trump majority’s unusual move is viewed as one whose principal effect is rhetorical.273 These critiques of Trump v. Hawaii’s handling of Korematsu, which were entirely missing from the calls for the Aurelius Court to overrule the Insular Cases, observe that there are “remarkable commonalities in the language and arguments—not the facts”—of Trump and Korematsu. 274 They observe that Korematsu’s legal significance runs deeper than the specific legality of wartime internment and that a meaningful reckoning with the case would affirmatively recast the judiciary’s role in policing the extent to which generalized claims of national security or military necessity may encumber other guarantees enumerated in the Constitution. Neal Kumar Katyal, an outspoken critic of Korematsu long before he argued Trump v. Hawaii at the Supreme Court,275 recently wrote the following of the majority’s approach:

[W]hen given the chance to memorialize Korematsu’s lessons, the Court instead made almost every mistake in Korematsu’s playbook—it accepted the government’s arguments at face value, deferred to the executive branch without ensuring that deference was warranted, and confined itself to a narrow review of the Proclamation, examining a “figmentary and artificial” case instead of the one actually before it. For these reasons, it will come as no surprise when, one day in the future, Trump v. Hawaii is eventually overturned. But let us hope that when that happens, the Court ends this line of cases for good, rather than resurrect it by another name.276

To Katyal and many others, it meant little for the Court to formally overrule Korematsu while remaining free to “recreate[] its reasoning under a different appellation.”277 By casting Korematsu as a relic, the Trump Court’s approach suggests nothing to curtail future harms born of Korematsu’s reasoning and approach to the Constitution.

But the harm in the Court’s approach is not just that it fails to address Korematsu’s fundamental problems. As Justice Sotomayor noted, this approach may have opened the door to “redeploy[ing] the same dangerous logic underlying Korematsu” by swapping “one ‘gravely wrong’ decision with another.”278 Here, the Court’s ability to revive and refashion Korematsu’s logic in the twenty-first century is potentially furthered by its symbolic but nonsubstantive rejection of a publicly reviled precedent. The decision to formally overrule Korematsu acquires separate value as rhetorical top cover for Trump v. Hawaii’s resulting conceptions of executive power, to say nothing of the purposes it might serve for a Supreme Court entertaining other precipitous moves dispensing with longstanding precedent.279 Anil Kalhan pointedly suggests that the Court “sought to clothe a decision upholding Trump’s Muslim ban in the garb of purporting to ‘overrule’ Korematsu,” a rhetorical move that he likens to “judicial clickbait.”280

Whether or not that is a fair characterization, it is important to observe how many of Korematsu’s outspoken critics, who have elsewhere expressed the view that the case retains no viability as precedent, view the Court’s actual approach to overruling it not just as unhelpful, but enabling of the very harms they wished to curtail. Notwithstanding Korematsu’s showy public burial, many of that case’s fiercest critics believe the Supreme Court succeeded in faking its death.

Though there are important contextual differences, those urging the Court to chart an equivalent course for the Insular Cases are headed for equally rough and uncertain waters. That today’s commentary calling for judicial intervention to overturn the Insular Cases has offered little if anything in the way of a workable framework of remedies is cause for concern. Overruling the Insular Cases will mean little to those suffering under them if doing so fails to craft clear limitations on the political branches’ capacity to manipulate the territories’ liminal status— which Aurelius shows will remain possible regardless of whether the Court formally acknowledges that the Constitution “applies” ex proprio vigore. Still worse, a blind leap risks martyring negotiated promises, cultural recognition, and selfdetermination for a ceremonious recitation of what “everyone knows to be true”281—that the Insular Cases were wrongly decided—irrespective of what might follow.