Court declines to take up petition seeking to overturn Insular Cases


The Supreme Court will not reconsider the Insular Cases, a widely criticized and racist group of early 20th-century decisions holding that the residents of U.S. territories do not automatically enjoy all of the rights protected by the Constitution. The announcement came on a list of orders released on Monday morning from the justices’ private conference last week. The justices did not add any new cases to their merits docket for the 2022-23 term.

The request to overrule the Insular Cases came to the court in Fitisemanu v. United States, a case involving citizenship for people who are born in the U.S. territory of American Samoa. Unlike citizens of other U.S. territories like Puerto Rico, Guam, and the U.S. Virgin Islands, citizens of American Samoa are not considered U.S. citizens. They are designated instead as U.S. “nationals,” which means that they can work and travel freely in the U.S., but they do not have the right to vote or run for federal office outside American Samoa.

John Fitisemanu and two other residents of American Samoa went to federal court in March 2018, seeking a declaration that people born in American Samoa are entitled to U.S. citizenship under the 14th Amendment. A federal district judge granted their request, but the U.S. Court of Appeals for the 10th Circuit reversed. The court of appeals concluded that “neither constitutional text nor Supreme Court precedent demands the district court’s interpretation of the Citizenship Clause of the Fourteenth Amendment,” which provides that people who are born “in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Fitisemanu came to the Supreme Court this spring, asking the justices to weigh in – including on whether to overrule the Insular Cases. Although Justice Neil Gorsuch had written, in a concurring opinion last year, that it is “past time to acknowledge” that the Insular Cases “have no foundation in the Constitution and rest instead on racial stereotypes,” neither he nor Justice Sonia Sotomayor – who in a dissent in the same case described the Insular Cases as “premised on beliefs both odious and wrong” – publicly dissented from the decision not to take up Fitisemanu’s case.

Also on Monday, the justices asked the Biden administration for its views in Tropp v. Travel Sentry, involving eligibility for a patent for a method that would allow the Transportation Security Administration to screen airline luggage while at the same time allowing passengers to lock their checked bags. There is no deadline for the U.S. solicitor general to file her brief.

The justices’ next conference is scheduled for Friday, Oct. 28.

This article was originally published at Howe on the Court.

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