Overturning insular cases reproduces Plessy logics – it posits judicial intervention and racism as a fixable aberration while glossing over its complexities.

In a famous essay offered in the form of a hypothetical dissent to Brown, Bell offers a critique that calls to mind both Katyal and Justice Sotomayor’s problems with how Trump v. Hawaii supposedly overruled Korematsu:

The majority’s decision to overturn Plessy is inadequate because it systematically glosses over the extent to which Plessy’s stark formalism participated in the consolidation of American racism. Rather than critically engaging American racism’s complexities, the Court substitutes one mantra for another . . . . Rewiring the rhetoric of equality (rather than laying bare Plessy’s racist underpinnings and consequences) constructs American racism as an eminently fixable aberration.358

Bell’s scholarship draws an entirely different sort of through line between Plessy and the Insular Cases—one that runs right through the framing problem on display in Aurelius and in Trump v. Hawaii. It considers in concrete terms how judicial intervention might have otherwise been fashioned to achieve the ends that motivated the legal campaign leading up to Brown, suggesting that “[r]ealistic rather than symbolic relief for segregated schools will require a specific, judicially monitored plan designed primarily to promote educational equity.”359 He then constructs a hypothetical framework that the court might have used to police education equality in detail.360 For all the connections already opened between Plessy and Downes, those concerned with the future of territorial exceptionalism have no excuse for not capturing the many lessons offered on the successes and shortcomings of judicial intervention in Brown. 361