1AC

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 Plan Text
Plan: The United States Federal Government should expand Social Security by
determining that people in U.S. territories are eligible for Supplemental Security
Income.
 Puerto Rico
The Advantage is Puerto Rico.

Puerto Ricans are debilitated by federal negligence that denies Supplemental Security
Income on the basis of territorial accessibility restrictions – this Supreme Court
precedent blocks disabled and impoverished Puerto Ricans from necessary funds.
Romig and Washington ‘22
(Kathleen Romig is Director of Social Security and Disability Policy at the Center on Budget and Policy
Priorities. She works on Social Security, Supplemental Security Income, paid leave, and other budget
issues. Romig previously worked at the Social Security Administration, Social Security Advisory Board,
and Congressional Research Service. She began her career as a Presidential Management Fellow, during
which time she completed an assignment at the Office of Management and Budget. Romig has a
master’s degree in Social Policy, from University College Cork, Ireland, where she was a George J.
Mitchell Scholar, and a B.A. from Michigan State University’s James Madison College., “Policymakers
Should Expand and Simplify Supplemental Security Income,” pg online @
https://www.cbpp.org/research/social-security/policymakers-should-expand-and-simplify-
supplemental-security-income#:~:text=Policymakers%20can%20strengthen%20SSI%20by,and
%20residents%20of%20the%20territories //pa-ef)

SSI), which policymakers created in 1972, provides monthly cash assistance to people who are at least age 65
Supplemental Security Income (

or are disabled and have little income and few assets . SSI benefits are critical for those who need them — but SSI is woefully out of
date, leaving many people in need ineligible for benefits and others who receive them without enough resources to meet basic needs. Policymakers
need to update SSI’s rules in a variety of ways. Its maximum benefit is only three-fourths of the poverty line, and 4 in 10 recipients[1] have incomes below the federal poverty line even with their SSI
benefits. Its income and asset limits have not been updated for decades. These rules allow recipients to keep only a meager amount of their earnings, other benefits, and savings, and prevent many older and disabled people in
need from qualifying. SSI also excludes most immigrants (until they become U.S. citizens) and residents of U.S. Territories, most of whom are people of color. SSI’s complex and intrusive rules make it more expensive to administer
and burdensome for applicants and beneficiaries. The Social Security Administration (SSA) spends more to administer SSI than it does to administer the much bigger Social Security Disability Insurance (SSDI) program.

Policymakers can strengthen SSI by expanding and simplifying it. They should update its asset limits and income rules and automatically adjust them. They
should raise its basic benefit, exempt retirement savings from the asset limits, and ease eligibility restrictions for immigrants and residents of the
territories. And, they should repeal some of its complex and intrusive rules. Such changes would improve the circumstances of low-income
older and disabled people and help close racial equity gaps. Due to persistent health and economic disparities, people of color are likelier to meet SSI’s
medical and financial requirements. As a result, most SSI beneficiaries are Black, Latino, and Asian American people, though white people make up the single largest group. Because SSI serves those most in need, improvements to
the program are a targeted, cost-efficient way to reduce poverty and “deep poverty” (income below half of the poverty line). Some recent proposals would update and improve SSI in important ways. The SSI Restoration Act, which
lawmakers introduced in both the House and Senate, would increase benefits, raise asset and income limits, eliminate marriage penalties, and simplify complex and intrusive rules.[2] During the 2020 presidential campaign, Joe
Biden proposed similar improvements to SSI, although not as detailed or extensive as those in the SSI Restoration Act.[3] He also proposed, both during his campaign and in his 2022 budget, extending SSI to Puerto Rico.[4]

Policymakers should adopt these SSI improvements. Background SSI provides monthly cash assistance to older or disabled people with
little income and few assets . It supplements the incomes of those who aren’t eligible for Social Security
or whose benefits are very low. SSI is administered by SSA, but it’s distinct from the Social Security retirement program because it is means-tested and
funded by general revenue, not payroll tax contributions . In March 2022, about one-third of SSI recipients also received Social Security retirement, survivors,
or disability benefits.[5] SSI uses the same medical criteria as SSDI to determine eligibility for disability benefits but different financial criteria. In March 2022, 7.6 million people received SSI benefits, including 1 million children with
disabilities. (See Figure 1.) Because beneficiaries typically have no other source of income, more than half receive SSI’s maximum benefit, which is $841 per month for an individual and $1,261 for a couple in 2022.[6] SSI reduces
these benefit amounts for recipients with other sources of income (such as earnings, Social Security benefits, or child support) or in-kind support, such as help with groceries they receive from family or friends. Such reductions
dropped the average SSI monthly benefit to $625 in March 2022.[7] Almost all states supplement the federal SSI benefit for at least some recipients. For instance, those supplements often help cover the care of those who live in

congregate settings, such as assisted living.[8] In most states, SSI recipients are automatically eligible for Medicaid. SSI helps to reduce the number of older and
disabled people in poverty and deep poverty, but many recipients remain below the poverty line. Before any state supplement or benefit reductions due to other income or in-kind support, SSI benefits are about three-fourths of the poverty line for a
person. Without SSI payments, 6 in 10 SSI recipients were below the poverty line under the official poverty measure in 2019.[9] With SSI, 4 in 10 SSI recipients were below the poverty line under the official poverty measure, and 3 in 10 were below the poverty line under the Supplemental Poverty Measure, which includes other benefits such as the Supplemental Nutrition Assistance
Program (SNAP) and housing assistance.[10] While reducing poverty among recipients, SSI benefits also reduce the number of people in deep poverty and reduce their need for support from family members. Many other older or disabled people in need, including people who have a lawful immigration status but are affected by eligibility restrictions enacted in 1996 (in the law that
also created the Temporary Assistance for Needy Families block grant), residents of most territories, or people with modest assets, are ineligible for benefits. Since SSI began paying benefits in 1974, the share of children and adults with disabilities who receive SSI grew, partly due to legislative changes in 1984 that expanded eligibility based on mental impairments, and a 1990
Supreme Court ruling that expanded the SSI disability criteria for children. The 1996 law noted above then restricted eligibility for children and immigrants. Over time, the share of older people receiving SSI has fallen steadily, as fewer of them qualify under SSI’s increasingly stringent income and asset limits, and more older adults are excluded by SSI’s immigration restrictions. The
share of people receiving SSI has remained steady at around 2.5 percent over the past decade and is projected to fall slightly over the long term. SSI is particularly important for low-income Black and Latino seniors and disabled people . (See Figure 2.) Due to persistent racial disparities in health care access and quality — as well as in access to food, affordable housing, high-

quality schools, and economic opportunity — people of color are likelier to become disabled . And due to persistent economic disparities, people of color are likelier to have incomes below the poverty line.[11] SSI is expensive to administer because its complex rules require SSA staff to continually monitor recipients’ living arrangements, incomes, savings, support from family and
friends, marital status, and more. SSI benefits make up only 5 percent of the payments that SSA makes, but the program requires 35 percent of the agency’s budget to administer.[12] In contrast, SSA spends 20 percent of its budget to administer SSDI, even though it has 1.5 million more beneficiaries than SSI. FIGURE 2 Majority of SSI Recipients Are People of Color How to Improve
SSI As noted, improvements to SSI would improve the circumstances of low-income older or disabled people and help close racial equity gaps. Here are the key options that policymakers should consider. Update the Asset Limits Despite growing recognition by policymakers and analysts that assets boost economic security and that public policy has helped to fuel a significant racial
wealth gap, SSI’s limits on allowable savings are very restrictive. When they created SSI in 1972, the President and Congress set asset limits to let recipients have some savings to cover the cost of emergencies.[13] The current limits have not been updated for more than 30 years, however, leaving recipients vulnerable in the event of an accident, unexpected bill, or other expense.[14]
These asset limits discourage saving and encourage people to dispose of assets they may need to qualify for program benefits. SSI recipients can’t have more than $2,000 in assets for an individual (and $3,000 for a couple), including savings accounts and most retirement accounts. Policymakers raised these asset thresholds just once (in 1989) since enacting SSI, and that increase only
partially offset the effects of inflation up to that point.[15] Had asset limits been indexed to inflation since 1989, they would be more than twice as high as they are today — and had they been indexed since 1972, they’d be more than four times as high. (See Figure 3.) A new bipartisan bill in the Senate would raise the asset limits to $10,000 for individuals and $20,000 for couples,
and index them to inflation.[16] One important exception to SSI’s asset limits is Achieving a Better Life Experience (ABLE) accounts, established in the 2014 ABLE Act. The Act enables SSI recipients whose disabilities began before age 26 and their family members to contribute up to $100,000 to ABLE accounts. These funds may be used to pay for housing, education, basic living
expenses, and other “qualifying disability expenses” — without affecting SSI benefits or eligibility. About 44 percent of people receiving SSI disability benefits began receiving them before age 26, typically because of developmental or neurological disorders such as Down syndrome, autism, or cerebral palsy. For qualifying recipients, ABLE accounts effectively raise asset limits, if they
choose to participate and their families have the financial capacity to save.[17] A bipartisan bill before Congress would broaden eligibility for ABLE accounts to include SSI beneficiaries whose disabilities began before age 46.[18] Federal policymakers have given states significant discretion in liberalizing asset limits in other low-income programs, and nearly every state has used that
discretion to liberalize asset limits or eliminate them altogether. These programs include SNAP (food stamps), Temporary Assistance for Needy Families (TANF), and the Low-Income Home Energy Assistance Program (LIHEAP).[19] All states except Arkansas and Missouri have eliminated asset limits in at least one program, and seven — Alabama, Colorado, Hawai’i, Illinois, Louisiana,
Maryland, and Ohio — have eliminated them in all three programs. Families in states with more generous asset rules are less likely to cycle on and off SNAP, research shows.[20] And the Affordable Care Act (ACA) prohibited states from applying asset limits to most Medicaid beneficiaries, including children, parents, pregnant people, and adults who became eligible for Medicaid
under the ACA’s Medicaid expansion. Low asset limits essentially penalize SSI recipients for saving. Since exceeding the limit can cause the loss of not just SSI cash benefits but also in some cases Medicaid, housing assistance, and other benefits, a prudent recipient will avoid saving too much.[21] Savings and assets, however, play an important role in improving economic stability and
mobility for low-income individuals, a large body of research shows.[22] Policymakers should increase SSI’s asset limits and index them to inflation so their value doesn’t erode again over time, as the SSI Restoration Act and Biden campaign pledge would do. They also should exempt retirement savings from SSI’s asset limit, as the SSI Restoration Act proposes. (See box, “Exempt
Retirement Savings from SSI’s Asset Limits.”) FIGURE 3 Supplemental Security Income's Asset Limits Are Outdated Exempt Retirement Savings from SSI’s Asset Limits Since SSI was enacted in 1972, households have relied much more on individual savings to fund their retirement. Over the past four decades, far fewer workers have traditional pensions at work. Instead, policymakers
and others encourage them to save for retirement on their own. Individual retirement accounts (IRAs) were created in 1974 and 401(k)s in 1978. The number of workers participating in such “defined contribution” retirement plans has risen nearly tenfold since the mid-1970s. Despite that dramatic shift in retirement income sources, SSI’s asset test still penalizes low-income older
and disabled people who manage to set aside retirement savings. Other programs, including SNAP, exclude retirement savings accounts from asset limits. Policymakers should exempt retirement savings from the SSI asset test, encouraging beneficiaries to save for retirement and letting those who accumulate savings benefit from them without losing their eligibility for SSI. Sources:
Zoë Neuberger and Robert Greenstein, “Changing Medicaid and SSI Rules to Encourage Retirement Saving,” The Retirement Security Project, September 2008, https://www.cbpp.org/sites/default/files/atoms/files/9-12-08asset-brief.pdf. Monique Morrissey, “The State of American Retirement,” Economic Policy Institute, March 3, 2016, https://www.epi.org/publication/retirement-
in-america/#chart1. Department of Labor, Employee Benefits Security Administration, “Private Pension Plan Bulletin Historical Tables and Graphs, 1975-2018,” https://www.dol.gov/sites/dolgov/files/EBSA/researchers/statistics/retirement-bulletins/private-pension-plan-bulletin-historical-tables-and-graphs.pdf. Update SSI’s Income Exemptions Similar to the asset limit, SSI’s general
income exclusion and earned income exclusion have declined dramatically in value. SSI exempts (or “disregards”) the first $20 per month of unearned income when determining a person’s eligibility and benefit levels; any income above that amount from sources such as Social Security, pensions, interest, and child support is subtracted from SSI benefits. Similarly, SSA disregards the
first $65 per month of earnings; each $1 of earnings above that level reduces SSI benefits by 50 cents. These rules begin to reduce benefits even when a recipient’s income is well below the poverty line. The amount of income that SSA disregards when calculating SSI benefits has not changed, even to account for inflation, since 1972. That has increasingly eroded the inflation-adjusted
value of benefits for SSI recipients who work or receive Social Security or other income. For SSI beneficiaries who can work, the stringent disregard for earned income significantly diminishes any incentive to work. The dollar-for-dollar benefits reduction for non-wage income above $20 does little to reward those who receive Social Security based on their past work, since the
combined benefits that they receive are little different than the benefits received by those with no work history. Policymakers should increase these disregards, which have remained frozen for nearly five decades, and index them so they automatically rise with inflation, as the SSI Restoration Act would do, or index them with wages, to keep up with rising living standards. Had the
disregards been indexed to inflation since 1972, the unearned income disregard would be $121 per month, and the earned income disregard would be $394. Policymakers should also treat Social Security as earned income, so that SSI recipients can keep much more of their Social Security benefits. (See box, “Treat Social Security as Earned Income.”) Treat Social Security as Earned
Income Enabling SSI recipients to keep more of their Social Security benefits would improve their economic security and recognize their work and contributions to the Social Security system.a By law, SSA treats Social Security benefits as “unearned income,” so it disregards the first $20 a month of such income and reduces the SSI benefit, dollar for dollar, by anything above that
threshold. That means, in effect, that Social Security beneficiaries who receive SSI can keep only $20 of their Social Security benefit. That $20 figure has not changed since SSI’s creation nearly five decades ago. By contrast, SSA disregards up to $65 of earned income and reduces benefits by only 50 cents for every dollar earned above that threshold. Social Security is by far the most
common source of other income for SSI recipients. In March 2022, 2.5 million adult SSI recipients also received Social Security, representing about 29 percent of disabled adult SSI recipients and 57 percent of elderly recipients. Their average Social Security benefit was around $500, but SSI recipients effectively receive only $20 of that amount, significantly diminishing their economic
security. If Social Security benefits were treated like earned income, an SSI recipient receiving a $500 Social Security benefit would receive $262.50 more in benefits per month. For many recipients, this change alone would bring their total income up to the poverty line. Social Security income, which people earn by working and contributing payroll taxes, should be considered earned
income. a Chantel Boyens and Jack Smalligan, “Improving the Supplemental Security Income Program for Adults with Disabilities,” Urban Institute, April 2019, https://www.urban.org/sites/default/files/publication/100096/improving_the_supplemental_security_income_program_for_adults_with_disabilities.pdf. Source: Social Security Administration, SSI Monthly Statistics, April
2021, and Annual Statistical Supplement, 2020, Table 7.D1 Raise Benefit Levels Maximum monthly SSI benefits are well below the poverty line, leaving many recipients with below-poverty income and unable to cover their basic living expenses. When policymakers established SSI, they sought to assure that “aged, blind, and disabled people would no longer have to subsist on below-
poverty-level incomes.”[23] SSI benefits alone, however, have never been large enough to raise recipients’ income above the federal poverty line. In 2022, SSI’s maximum benefit for an individual is $841, while the federal poverty line for an individual is $1,133 per month. Moreover, the official poverty line is too low for people to meet basic needs. Official estimates of minimum
living costs consistently exceed the poverty line by a wide margin; just two parts of a family’s budget — rent for a modest two-bedroom apartment in a medium-cost metropolitan area as determined by the U.S. Department of Housing and Urban Development (HUD), and the cost of a minimum nutritionally adequate diet as estimated by the U.S. Department of Agriculture (USDA) —
cost $21,000 in 2018, or 83 percent of the poverty threshold for a two-adult family.[24] Surveys also show that most Americans would set the poverty line higher than the official poverty line. Policymakers should raise SSI’s basic benefit at least to the poverty level, as both the SSI Restoration Act and the Biden campaign plan would do. Raising benefits is the only SSI improvement
discussed in this paper that would help all recipients — including those without other sources of support. Liberalizing income and asset rules improves the circumstances of beneficiaries who have other income or savings. Eliminating marriage penalties and in-kind support rules improves the circumstances of those with spouses or material support from family and friends. Eliminate
SSI’s In-Kind Support Rules SSI has an “in-kind support and maintenance” (ISM) policy that requires recipients to disclose any material help that they receive from family and friends, whether groceries or a place to sleep. For each $1 worth of assistance, SSI benefits shrink by $1. While fewer than 1 in 10 SSI recipients report that they receive in-kind support, mostly help with shelter,
the policy affects every SSI recipient. That’s because SSA must ask detailed questions about other household members, expenses, budgeting, and more in order to categorize each recipient’s living arrangement and conclude whether they receive in-kind support — and then repeat the process as circumstances change. No other federal program counts in-kind support when
determining benefit levels.[25] Recipients with ABLE accounts, as discussed above, may use the funds that family members contribute to them to pay for basic living expenses without suffering any SSI benefit reductions. That, however, causes significant inequity; families who can afford to contribute money into ABLE accounts can do so without triggering benefit reductions, but
families of more modest means who can only share their homes with a beneficiary will trigger benefit reductions. ISM is a complicated and labor-intensive process for SSA, and it’s intrusive and burdensome for recipients.[26] SSA’s staff manual includes the equivalent of 250 single-spaced pages of instructions on living arrangements and in-kind support, the complexity of which
makes it “virtually impossible to attain consistency in ISM analyses,” according to the bipartisan Social Security Advisory Board.[27] It’s also complex and costly for SSA to administer.[28] ISM is a leading cause of SSI overpayments and underpayments, according to the Government Accountability Office (GAO) and SSA’s inspector general.[29] Finally, it discourages family and
community support for low-income older and disabled people. “For example, while a rent subsidy provided by a family member is counted as ISM and reduces the SSI benefit, government-funded housing subsidies are excluded by law. This discourages family members from helping and encourages reliance on government programs.”[30] Policymakers can update ISM in different
ways. Over the years, SSA has developed and analyzed options to simplify ISM, which would reduce administrative cost and complexity.[31] The options are typically cost neutral, meaning that some SSI recipients would be better off, and others would be worse off than under current law.[32] President Trump’s fiscal year 2021 budget proposed one such option — it would have
replaced ISM with a flat-rate benefit reduction for adult SSI recipients who are living with other adults.[33] A better approach would be to eliminate ISM altogether, which both the SSI Restoration Act and Biden campaign plan would do. Eliminating ISM would simplify the program, reduce administrative costs, and allow recipients to accept help from friends and family without
penalty. Improve SSI’s Treatment of Immigrants Until the 1996 welfare law, immigrants with low incomes who were lawful permanent residents generally qualified for SSI on the same basis as U.S. citizens. Now, most lawful permanent residents who are elderly or have disabilities are ineligible for SSI (unless they entered the U.S. before August 22, 1996, or became U.S. citizens). Even
immigrants who are lawfully present and who acquire a disability after entering the U.S. are ineligible. SSI’s immigration-related eligibility restrictions are much harsher than those imposed by SNAP, Medicaid, and TANF, and they cause considerable hardship. More than 4 in 5 immigrants are people of color, giving these restrictions a racially disparate impact.[34] Policymakers should

end the Among the

harsh immigration-related restrictions and allow people with lawful immigration statuses to be eligible for SSI on the same basis as U.S. citizens. Extend SSI to the U.S. Territories

territories, only residents of the N orthern M ariana I slands receive SSI. Puerto Rico, Guam, and the
Virgin Islands receive a federal block grant called Aid to the Aged, Blind, and Disabled (AABD), which provides far lower benefits and has more
restrictive eligibility criteria than SSI. American Samoa has neither SSI nor AABD. AABD is much more restrictive than SSI. Unlike with SSI, federal law caps the annual

funding that the territories receive for AABD and other adult assistance programs, and that cap hasn’t changed since 1997.[35] A GAO study estimated that in 2011, federal
spending on AABD was less than 2 percent of what it would have been if Puerto Rico residents received full SSI benefits, and that monthly benefits for an individual receiving AABD are less than 15 percent of the benefits that SSI

would provide, all else being equal. Puerto Rico’s exclusion from SSI is especially harmful given the territory’s high
disability rate . Disability is more prevalent among less educated, lower-income, and older people, and
these are more likely the case for Puerto Rico residents than mainland U.S. residents .[36] Nearly 1 in 6
Puerto Rico residents (15.1 percent) are disabled, according to the Census Bureau, compared to 8.6 percent of the general U.S.
population, and half of the territory’s disabled residents live in poverty — twice the U.S. average. Most
territories have overwhelmingly non-white populations, giving this exclusion a racially disparate
impact .[37] Policymakers should extend full SSI to Puerto Rico and the other territories, as President Biden proposed in his
2022 budget.[38] In 2020, a U.S. appellate court backed a federal district court ruling that excluding Puerto Rico

residents from SSI is unconstitutional, but the U.S. Supreme Court overturned the ruling in 2022 .[39]
Extending SSI to the territories would now require a change to the law. Eliminate SSI’s Marriage Penalties SSI penalizes recipients who marry one another. The asset limit is $2,000 per individual but $3,000 for a married couple.
Similarly, the federal benefit is $841 for an individual and $1,261 (only 50 percent higher) for a married couple in 2022, costing a married couple up to about $400 a month. Policymakers should eliminate the marriage penalties by
making the asset test and federal benefit for married couples twice that of individuals, as both the SSI Restoration Act and Biden campaign plan would do.[40] They also should end the “holding out” rule, which requires extensive

questioning to determine if couples who are not legally married are presenting themselves to the community as a married couple.[41] This rule subjects SSI recipients to intrusive scrutiny of their personal lives. Conclusion SSI
provides critical income support to millions of older and disabled people with very low incomes . While modest,
the monthly benefit enables recipients to afford rent, food, and other basic needs. Still, policymakers
should enact changes to ensure that those in need can access the program, without undue burdens .
Lawmakers should expand and update SSI to ensure that recipients can work, marry, save, keep more of their Social Security benefits, and accept help from their loved ones without facing harsh penalties. They also
should expand eligibility to immigrants and residents of U.S. Territories and increase benefits to keep pace with rising standards of living. Both the SSI Restoration Act and
President Biden’s campaign proposal on disability provide a roadmap to modernize SSI for the 21st century.

Vaello-Madero decision weakened Equal Protection based on nonsensical judicial

precedent established in the Insular Cases --- that upholds racist assumptions of the
territory’s residents --- the court should establish Puerto Ricans as a suspect class and
rule that SSI denial deserved strict scrutiny
Gomez-Velez ‘23
(Natalie, Professor of Law, City University of New York (CUNY) School of Law, “SYMPOSIUM: An
Anomalous Status: Rights and Wrongs in America's Territories: DE JURE SEPARATE AND UNEQUAL
TREATMENT OF THE PEOPLE OF PUERTO RICO AND THE U.S. TERRITORIES,” 91 Fordham L. Rev. 1727, pg
Nexus //pa-ef)
[*1731] I. UNITED STATES V. VAELLO MADERO: AN EXAMPLE OF STARK INEQUALITY IN PUERTO RICO AS A U.S. TERRITORY Puerto Ricans are U.S. citizens recognized as a
discrete and insular minority.11 On April 21, 2022, the Supreme Court determined that the statutory denial of equal SSI
benefits to an eligible U.S. citizen who was denied SSI simply because he moved from the U.S. mainland to Puerto Rico does not violate the Equal Protection Clause
of the Constitution.12 In doing so, the Court declined to acknowledge the inappropriate unequal treatment of Puerto Rico

residents as discrete and insular minorities, to address and overrule the Insular Cases , and to address
the problem of perpetual unincorporated territorial status . Instead, the Court conducted a weakened
rational basis review of the SSI statute due to Puerto Rico's status as a territory.13Vaello Madero exemplifies the
consequences of the Insular Cases' incorporation distinctions, which were based on racist doctrine . It provides a glaring
example of current discriminatory impacts of the Supreme Court's failure to overturn them. Vaello Madero demonstrates a blatant denial of equal
protection based on Puerto Rico's territorial status. The Territorial Clause of the Constitution grants Congress the
authority to treat U.S. citizens residing in Puerto Rico, and certain other territories, differently from
citizens residing on the mainland when structuring federal taxes and benefits.14 That inequity is based on
classifications from the Insular Cases marking Puerto Rico and other unincorporated territories as foreign "in a domestic sense."15 If that phrase sounds nonsensical ,
that is because it is. It is a product of a twisted logic established in the Insular Cases that was designed to maintain the

subordination of territories because of blatantly racist assumptions about their people. A. United States v. Vaello Madero Vaello
Madero represents a recent Supreme Court opportunity (and failure) to overturn the Insular Cases. The facts of the
case provide a clear example of stark inequity and discriminatory treatment of territorial residents. [*1732]
The plaintiff, Mr. Vaello Madero, was a U.S. citizen.16 While living in New York City, he suffered a serious illness that left him unable to work.17 He was eligible for, applied for, and began receiving SSI benefits.18 A year later, he
returned to Puerto Rico to be closer to his family.19 He continued to receive SSI benefits.20 About three years later, the Social Security Administration notified Mr. Vaello Madero that it was revoking his benefits retroactively from
when he established residency in Puerto Rico because he was allegedly outside the United States.21 Worse yet, the government sued Mr. Vaello Madero to recover over $28,000 in alleged SSI overpayments.22 With the assistance

denying SSI benefits to eligible U.S. citizens solely because they

of an appointed attorney, Mr. Vaello Madero fought back.23 He asserted that

reside in Puerto Rico violated the Equal Protection Clause of the Fifth Amendment to the Constitution.24 The U.S. District Court for the
District of Puerto Rico granted Mr. Vaello Madero's motion for summary judgment on the equal protection question.25 The court distinguished the two Supreme Court cases on which the government relied, Califano v. Gautier
Torres26 and Harris v. Rosario,27 which were both per curiam summary determinations. The government interpreted these cases as permitting the differential treatment of persons who resided in Puerto Rico, arguing that the
plenary powers granted to Congress under the Territorial Clause allowed "a deferential rational basis review."28 The court concluded that Congress's actions in this case "fail[] to pass rational basis constitutional muster" because

said that the statute in

"[c]lassifying a group of the Nation's poor and medically neediest United States citizens as 'second tier' simply because they reside in Puerto Rico is by no means rational."29 The court also

question discriminated on the basis of a suspect classification because "[a]n overwhelming percentage of

the [*1733] United States citizens [who] resid[e] in Puerto Rico are of Hispanic origin ."30 Citing Boumediene v. Bush31 and
United States v. Windsor,32 the court concluded that the ratio decidendi in Califano and Harris predated "important subsequent developments in the constitutional landscape," and thus required reappraisal.33 When the case went
on appeal to the U.S. Court of Appeals for the First Circuit, the government offered two primary justifications for its policy: (1) the difference in tax status between Puerto Rico and U.S. states and (2) the costs of extending the
program to residents of Puerto Rico, who generally do not pay federal income taxes.34 The government relied on Califano and Harris, in which the Supreme Court permitted differential treatment of Puerto Rican residents in the
provision of public benefits. In his opinion, Judge Juan R. Torruella reached a conclusion similar to the district court's but took a different approach. Citing the Supreme Court's admonition that "it is [the Supreme] Court's
prerogative alone to overrule one of its precedents," the First Circuit again applied rational basis review to the government's exclusion of Puerto Rican residents from SSI benefits.35 Judge Torruella first distinguished Vaello-Madero
from Califano and Harris. Califano was decided on right-to-travel grounds; there was no equal protection question before the Court.36Harris, meanwhile, did not involve SSI, but rather a different program: Aid to Families with
Dependent Children, which was a block grant program that involved federal, state, and local partnerships.37 Thus, Judge Torruella concluded that "the [Supreme] Court has never ruled on the validity of alleged discriminatory
treatment of Puerto Rico residents as required by the SSI program under the prism of equal protection."38 Judge Torruella then explained why the government's two rational-basis arguments failed. First, the tax-status argument
failed because Puerto Rico regularly contributes more than $4 billion annually in federal taxes more than at least six states and the Northern Mariana Islands, where SSI benefits are available.39 Second, he found the government's
narrower argument regarding nonpayment of federal income taxes to be also inadequate because SSI is funded by general revenues, and "SSI eligibility is completely [*1734] 'divorced from individuals' tax payment history.'"40
Judge Torruella also noted that SSI is a "national program distributed according to a uniform federal schedule, funded by appropriations that are not earmarked by state or territory, and disbursed regardless of an individual's
historical residence."41 Moreover, the court concluded that the high cost of including Puerto Rican residents in the SSI program was not a rational basis for their exclusion because government fiscal considerations receive no
deference when "an entire segment of the would-be benefitted class is excluded."42 Judge Torruella further stated: [W]hile we respect the legislature's authority to make even unwise decisions to purportedly protect the fiscal
integrity of SSI and the federal government itself, the Fifth Amendment does not permit the arbitrary treatment of individuals who would otherwise qualify for SSI but for their residency in Puerto Rico . . . . Even under rational basis
review, the cost of including Puerto Rico's elderly, disabled, and blind in SSI cannot by itself justify their exclusion.43 Despite requests that the U.S. Department of Justice (DOJ) decline to defend the differential treatment of
residents of territories for SSI purposes,44 the U.S. government appealed to the Supreme Court anyway.45 The Court's analysis centered on applying the appropriate standard of review to the facts. During oral argument, key
questions included (1) whether the equal protection challenge to the denial and clawback of Mr. Vaello Madero's SSI benefits should be subject to strict scrutiny or rational basis review, (2) whether the matter could be decided
under the Territorial Clause alone, and (3) whether the matter implicated the Insular Cases.46 For example, the first question from Justice Thomas involved whether "the Territory Clause is enough of [a] source of authority for the
government or Congress to have a rational basis to do what it's doing."47 The government responded that it was not "resting just on the Territory Clause": "We agree that the equal protection principle in the Fifth Amendment's
Due Process Clause applies here, and there does need to be a rational basis."48 The government thus [*1735] avoided the Insular Cases issue by declining to say that the Territorial Clause alone permitted the inequity at issue.

The government took the position that the Insular Cases did not apply.49 While acknowledging that the "Insular Cases were about whether
there are different portions of the Constitution that apply differently to different territories," the government argued that the Insular Cases were not implicated because the "Court has previously held that the equal protection

the government sidestepped key questions about how the Equal

component [of the] Fifth Amendment applies to Puerto Rico."50 In this way,

Protection Clause interacts with the Insular Cases' interpretation of the Territorial Clause. Perhaps recognizing this,
Justice Gorsuch asked: "[I]f that's true, why . . . shouldn't we just admit the Insular Cases were incorrectly decided?"51 He then asked the government for its position on the Insular Cases.52 In response, the government's lawyer
stated that "some of the [Insular Cases'] reasoning and rhetoric . . . is obviously anathema, has been for decades, if not from the outset" and that "the Court has repeatedly declined to extend the Insular Cases."53 He quickly noted,

, the
however, that the Insular Cases were "not at issue . . . because the conclusion that parts of the Constitution wouldn't apply to Puerto Rico doesn't decide anything that is relevant to this case."54 Once again

government evaded a key question about how the Constitution should apply to the territories. It
offered the compartmentalized argument that, because the Court has agreed that a particular
constitutional principle applies to the particular facts, the larger justifications for unequal treatment
can simply be ignored as not "relevant."55 Justice Sotomayor, refusing to ignore the most salient issues, asked: "[H]ow does the fact that Puerto Rico residents are a politically
powerless minority . . . [that] has been subject to . . . a history of discrimination [as exemplified by the Insular Cases] factor into your argument on rational basis?"56 The government simply replied: "[W]e don't think that there is

any heightened scrutiny here."57 [*1736] Oral argument revealed facts contradicting the government's argument that tax distinctions
and cost barriers established a rational basis for the government's denial of SSI benefits and discrimination.58 For example, Justice Sotomayor stated that "Puerto Ricans pay . . . as much
taxes . . . as other states in the union" and that "[t]he government gives some tax benefits to some things and not others."59 She also noted that the record "shows Puerto Ricans as a
community . . . pay more than many states of the union."60 The record contained ample evidence showing that Puerto Rican residents paid more in aggregate taxes than many states and that
there was no "real connection" between tax burdens and benefits provided under the SSI program.61 Nor is cost alone a rational basis for denying equal protection in providing a public
benefit.62

The Supreme Court REFUSES to reject the insular cases despite their widespread and
often racist citing NOT BASED IN ANY LEGAL PRECEDENT --- they stay on the books as a
CLEAR example of racist decision-making, while the court avoids decisions that would
overturn them. Failure to deal with the insular cases creates legal confusion that
makes all their disads inevitable, but leaves racist, legal structures in place
Derieux and Weare ‘20
(Adriel I. Cepeda Derieux is a Senior Staff Attorney with the Voting Rights Project of the American Civil
Liberties Union (ACLU). Neil Weare is the President and Founder of Equally American Legal Defense and
Education Fund and an associate at Loeb & Loeb LLP, “After Aurelius: What Future for the Insular
Cases?,” pg online @ https://www.yalelawjournal.org/forum/after-aurelius-what-future-for-the-insular-
cases //pa-ef)

In a series of controversial and initially fractured cases between 1901 and 1922,20 the Supreme Court devised a novel distinction
between “incorporated” territories “surely destined for statehood” and so-called “unincorporated” ones, where there was no such promise
of eventual political equality.21 As commonly understood, the Constitution applies “in full” in incorporated territories ,22 but only “in

part” in unincorporated territories like Puerto Rico. However, what that means as a practical matter is far
from clear .23 Confusion over the Insular Cases framework has led many lower courts and litigants to
misapply dicta from those decisions to say only “fundamental” protections apply in unincorporated
U.S. territories unless Congress says otherwise.24 Notably, none of the Insular Cases support the broad
assertion that “only” certain “fundamental” rights apply to residents of the territories; indeed, such a view turns the actual language from these cases on its head.25 Now “much-criticized,” as Aurelius noted,26 this
“territorial incorporation” doctrine ostensibly afforded Congress greater flexibility to govern these newly acquired overseas territories than it had to administer its prior territories.27 By purportedly freeing Congress from certain
constitutional limitations, jurists have understood the Insular Cases to allow the Court and Congress to avoid “inherent practical difficulties”28 in governing islands lacking “experience in . . . Anglo-American legal tradition[s].”29 In
this way, as Justice Harlan explained in one of his powerful dissents, the Insular Cases introduced the circularly flawed “theory that Congress . . . [could] exclude the Constitution from a domestic territory of the United States,

Even if that were all they stood for, the Insular Cases would be overdue for a
acquired . . . in virtue of the Constitution.”30

reckoning. Supreme Court Justices, lower court judges, and scholars have long warned that allowing
Congress to decide for itself when constitutional limits constrain its actions would all but quash the
idea of constitutional constraints.31 “The Constitution,” after all, “grants Congress . . . the power to acquire, dispose of, and govern territory, not the power to decide when and where [the
Constitution’s] terms apply.”32 But the core defect of the Insular Cases—their original sin— provides an even greater justification

for overruling them: namely, any flexibility they granted Congress to administer newly acquired overseas
territories outside constitutional restraints sprang from the desire to keep the mostly nonwhite
people who lived there outside the national polity . In Downes v. Bidwell, for example, Justice Brown—Plessy’s author—warned that Congress should have added
flexibility to govern distant “possessions [] inhabited by alien races.”33 Justice White spoke of the “evils” of admitting “millions of inhabitants” of “unknown islands, peopled with an uncivilized race,” who he believed would be

the Insular Cases and the doctrine of territorial incorporation not only ratified
“absolutely unfit” for citizenship.34 Put simply,

but constitutionalized the era’s racism and racial hierarchies . Chief among the “practical difficulties”35 that the Court helped Congress avoid were
questions over the rights and duties that the nation owed the new territories’ inhabitants. A century after the founding, it was “self-evident”36 that the United States could both hold territories37 and that constitutional protections
applied in those lands.38 And it was generally understood that organized territories were not only states-in-waiting,39 but also that Congress could not keep them in territorial limbo forever.40 When the country began to acquire
overseas territories almost exclusively inhabited by non-English speaking people of color, however, “Congress . . . discontinue[d] its previous practice of extending constitutional rights to [U.S.] territories by statute”41 and
abandoned its custom of formally outlining a path for territories to “mature” into statehood.42 The prospect of absorbing millions of people of color into the body politic divided the political branches “over how, and to what
extent, the Constitution applied” to new territories.43 Leading voices on both sides deployed explicitly racist arguments to make their points.44 The Insular Cases and territorial incorporation were a judicial response to this
debate,45 and they gave constitutional cover to proponents of expansionism and the theories of race and social Darwinism that that fueled such expansion.46 The decisions raised questions over whether overseas territories—and
the people who inhabited them—would ever be “incorporated” into the national fabric. Language in the Court’s leading Insular Cases opinions left no doubt of the Justices’ racialized reasons for devising the new territorial-

Scholarly consensus49 and the

incorporation doctrine the way they did.47 Rather than force Congress to answer “grave questions” based on “differences of race,”48 the Court gave it a way out.

ever-growing number of lower courts wrestling with the Insular Cases’ uglier implications50
increasingly show that the cases cannot be separated from their racialized justifications . Sanford Levinson was correct: the cases should rightly be viewed as “central
documents in the history of American racism.”51 B. Supreme Court’s Skepticism over Its Own Doctrine Even as the Insular Cases have remained “good law,” the Supreme Court has proven increasingly reticent about applying the territorial-incorporation doctrine to deny constitutional rights or protections in U.S. territories. The last time the Court found a constitutional provision not “applicable” to unincorporated territories was in 1922, when it the held in Balzac v. Porto Rico that the Sixth Amendment right to a jury trial was inapplicable to defendants tried in Puerto Rico’s
local courts.52 Since then, each time a new constitutional question has arisen, the Court has consistently held that specific rights and constitutional provisions operate by their own force in the territories.53 The Court has been openly skeptical and even hostile to the Insular Cases, warning that they should not be extended. Yet they persist. That skepticism has been clear since a 1957 plurality opinion in Reid v. Covert and culminates, for now, with the unanimous Court’s judgment in Aurelius. In Reid, six Justices held that criminal-defendant civilian spouses of servicemen
stationed abroad had a right be tried by a jury.54 Addressing the Insular Cases‘ relevance, Justice Hugo Black voiced four Justices’ “judgment that neither the [Insular Cases] nor their reasoning should be given any further expansion.”55 Thirty-five years after Balzac, it was clear to a plurality of the Court that switching off the “Bill of Rights and other constitutional protections . . . when they become inconvenient” would “destroy the benefit of a written Constitution.”56 Had Justice Black found a fifth vote for his opinion, the territorial incorporation doctrine would have ended
with Reid. Justice Black’s plurality in Reid played a large role in Justice William J. Brennan’s four-Justice 1979 concurrence in Torres v. Puerto Rico, which cast added doubt on the territorial incorporation as a defensible doctrine.57 In Torres, the Court unanimously held that Fourth Amendment protections applied in Puerto Rico, in part because Congress already assumed they did.58 But, relying on the Reid plurality, Justice Brennan and three other Justices dismissed outright the possibility that the Insular Cases any longer raised “question[s] [about] the application of the
Fourth Amendment—or any other provision of the Bill of Rights” to Puerto Rico.59 “Whatever the validity” those cases had in their “particular historical context,” they no longer held such power.60 But, yet again, there was no fifth vote for this view. Finally, in Boumediene v. Bush, which addressed the reach of the constitutional right of habeas corpus to detainees housed in the U.S. naval base in Guantánamo Bay, Cuba, a majority of the Court cited approvingly to the Reid plurality and Justice Brennan’s Torres concurrence in its discussion of what the Insular Cases mean for
U.S. territories today.61 Boumediene emphasized that a territory’s ties to the United States could strengthen over time in constitutionally significant ways.62 Far from carving out an extra-constitutional zone in the territories where only “fundamental” protections applied, Boumediene said, the Insular Cases merely spoke to whether specific provisions limited executive and legislative power given “conditions and requirements” unknown to the country in the early 1900s.63 After Boumediene, a leading scholar fittingly said, the Insular Cases looked like “sheep in lion’s
clothing.”64 But the Insular Cases are still dangerous. Because the Supreme Court has not overruled them, lower courts reflexively rely on and often misapply the Insular Cases,65 regardless of the Court’s recent narrowing language. Absent clear guidance from the Court, lower courts have created their own, often expansive applications of the Insular Cases. Too frequently, their decisions invoke the “fundamental rights” limitation on the Constitution’s operation in unincorporated territories that is not only contrary to the language of the Insular Cases themselves,66 but also
now to Reid, Torres, Boumediene, and Aurelius. Too often, this misplaced reliance on the Insular Cases by lower courts deprives territorial residents of rights and protections to which they are almost surely entitled.67 II. MISSED OPPORTUNITY Lower courts misapply the Insular Cases so frequently that it is a welcome result when a court analyzes them in their appropriate scope and context. In Aurelius, the First Circuit faithfully adhered to Supreme Court precedent to read the Insular Cases narrowly and expressly declined to “expand the reach of the ‘Insular Cases.’”68
Quoting Reid, it called the Insular Cases a “‘relic from a different era”69 and “historically and juridically, an episode of the dead past.”70 The First Circuit did not speak unprompted—various parties invoked the Insular Cases before the lower courts to say that the Appointments Clause lacks force in Puerto Rico.71 At the Supreme Court, however, most parties shifted their strategies, focusing less on the Insular Cases. The unstated reason seems obvious: as a strategic matter, advocates seldom rely on indefensible case law before the one Court that can overrule it. But Chief
Justice Roberts still overstated things by saying “none of the parties” relied on the decisions; at least one continued to argue that “only” certain “fundamental” rights applied in Puerto Rico and that the Appointments Clause, as a result, did not.72 Meanwhile, parties on both sides of the merits73 and various amici urged the Court to finally overrule the Insular Cases.74 Although the Supreme Court stopped well short of overruling the Insular Cases in Aurelius, its refusal to do so75 was not exactly a punt either. Rather, the Supreme Court did three things that lower courts
and litigants should pay close attention to when considering constitutional questions concerning U.S. territories. First, the Court relied on Reid v. Covert for the proposition that the Insular Cases “should not be further extended.”76 The specific passage in Reid the Aurelius majority cited cabined the Insular Cases to narrow questions on the applicability of just four constitutional provisions concerning tariffs, taxes, and jury-trial rights.77 By heeding Reid’s admonition that extending the Insular Cases further “would destroy the benefit of a written Constitution and undermine
the basis of our Government,”78 Aurelius suggests that the Insular Cases are irrelevant outside the exceedingly narrow subset of litigation that involves those clauses. Second, the Court underscored the significance of its reliance on Reid by remarking that since the Insular Cases “did not reach th[e] issue” of the Appointments Clause’s applicability to the appointment of U.S. officers in Puerto Rico, the Court would “not extend them in [Aurelius].”79 And finally, the Court spoke in undeniably questioning terms on the Insular Cases’ perdurance, noting that “whatever their
continued validity” it would not expand on their framework.80 That is hardly the stuff that worthwhile doctrine is made of.81 Still, the Supreme Court’s unwillingness to set aside the territorial-incorporation doctrine in Aurelius was surely a missed opportunity to turn the page on this regrettable period of American jurisprudence. If the Insular Cases’ continuing validity is so questionable—and their import, at this point, so limited—the Court would have done well to accept the invitation of multiple parties and amici to overrule them once and for all. That is significant
because, few, if any, doctrines remaining on the books today so squarely spring from such unabashedly racist assumptions.82 The Insular Cases are most often compared to the similarly abhorrent Plessy v. Ferguson,83 decided by essentially the same Supreme Court.84 But of course Plessy has long been overturned while the Insular Cases continue to wait for their own Brown v. Board of Education.85 The better modern comparator for the Insular Cases might be not Plessy, but Korematsu v. United States.86 Like the Insular Cases and Plessy, Korematsu sanctioned “an
odious, gravely injurious racial classification.”87 Like the Insular Cases, Korematsu’s justification for discriminatory treatment was “rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate.”88 And, like Korematsu, the Insular Cases have, at least outside the courts, now been long “overruled in the court of history,”89 as Justice Breyer intimated when he agreed they are now a “dark cloud.”90 The Supreme Court’s approach to Korematsu in Trump v. Hawaii, however, differed vastly from its approach to the Insular Cases in
Aurelius. In both cases, the majority observed that the earlier, morally repugnant decision was not squarely presented.91 But whereas Chief Justice Roberts’s majority opinion in Trump v. Hawaii recognized the necessity of formally overruling Korematsu’s “morally repugnant order,”92 the Aurelius majority declined to overrule the Insular Cases, even as it recognized the extent of their criticism and questioned their “continued validity.”93 The Court’s failure to overrule this similarly “morally repugnant” series of cases perpetuates “gravely injurious” discriminatory treatment
rooted in “dangerous stereotypes.”94 Furthermore, allowing the Insular Cases to remain “good law” presents real risks that lower courts will continue to misapply them. It is hardly an idle concern. Litigants in docketed cases, including the U.S. government, continue to argue that the Insular Cases deprive residents of the territories of all but the Constitution’s “fundamental” protections.95 Like Aurelius, those cases might well soon find their way to the Court. Thus, Aurelius raises the question: if and when another case brings the Insular Cases more squarely before the
Court, will it finally reconsider the troubling territorial incorporation doctrine or once again take a pass? III. FUTURE POSSIBILITIES While the Supreme Court missed an important opportunity in Aurelius to reconsider the Insular Cases and the legacy of structural inequality they have perpetuated, a string of cases coming from the lower courts give the Court another opportunity. In the very near future the Supreme Court could take cases examining whether people born in U.S. territories have a constitutional right to citizenship under the Fourteenth Amendment; whether
Fourth Amendment protections against unreasonable searches apply equally in the U.S. Virgin Islands; and whether the denial of certain federal benefits programs to residents of Puerto Rico violate the Constitution’s guarantee of equal protection. These issues are raised in Fitisemanu v. United States, United States v. Baxter, and United States v. Vaello Madero, respectively. A. Fitisemanu v. United States John Fitisemanu was born on U.S. soil in American Samoa—a U.S. territory since 1900.96 Yet the federal government refuses to recognize him as a U.S. citizen, labeling
him instead as a “national, but not a citizen, of the United States.”97 Last December, the U.S. District Court for the District of Utah ruled this denial of citizenship unconstitutional and recognized Mr. Fitisemanu as a full U.S. citizen based on the Citizenship Clause of the Fourteenth Amendment, although it stayed its decision pending appeal.98 On appeal to the Tenth Circuit, the United States has relied almost entirely on the Insular Cases to argue that American Samoa and other so-called “unincorporated” territories are not “in the United States” for purposes of the
Citizenship Clause.99 Oral argument before the Tenth Circuit was September 23, 2020; a ruling before Election Day is uncertain. All this will likely leave Mr. Fitisemanu—a tax-paying, law-abiding, and U.S. passport-holding100 resident of Utah for more than twenty years—unable to vote this year for President, Governor, or even his local school board, despite the district court’s recognition that he has been a U.S. citizen since the day he was born. The Supreme Court’s language in Aurelius limiting the scope of the Insular Cases may prove critical as the Tenth Circuit considers
whether to follow the narrow approach to the Insular Cases taken by the district court, or the expansive approach taken by the U.S. Court of Appeals for the District of Columbia in Tuaua v. United States in 2015.101 The district court in Fitisemanu held that “because Downes did not construe the Citizenship Clause, and because the controlling opinion’s statements in Downes related to citizenship are not binding on this court, Downes does not control the outcome of this case.”102 In contrast, the D.C. Circuit held in Tuaua that “[a]nalysis of the Citizenship Clause’s
application to American Samoa would be incomplete absent invocation of the sometimes contentious Insular Cases,”103 and applied their framework to conclude people born in American Samoa are not U.S. citizens absent congressional action. It is hard to square the D.C. Circuit’s approach with the Supreme Court’s conclusion in Aurelius, based on Reid, that “the Insular Cases should not be further extended.”104 The district court in Fitisemanu identified other compelling reasons why the Supreme Court’s precedent requires a narrow reading of the Insular Cases. In
particular, the district court justified not relying on dicta from Justice White’s controlling opinion in Downes105 because “the Supreme Court has, since Downes, thoroughly rejected the bigoted premise upon which Justice White’s dicta is founded—that some groups are inferior to others based simply on their race.”106 The court reached a similar conclusion when it rejected Justice Brown’s opinion: “Justice Brown’s digression related to citizenship is largely premised on notions of white supremacy that the Supreme Court has long ago rejected.”107 This approach clashes
with Tuaua’s embrace108 of Justice Brown’s racially motivated109 “distinction between certain natural rights . . . and what may be termed artificial or remedial rights,”110 the latter of which included “the rights to citizenship” and “suffrage,” and which, according to Justice Brown, were not automatically protected in newly acquired territories.111 Should Fitisemanu end up before the Supreme Court after the Tenth Circuit rules, the Insular Cases will figure prominently, presenting a more attractive opportunity for their reconsideration. The United States has made the
Insular Cases a core element of its defense in Fitisemanu and the territorial incorporation doctrine was central to the D.C. Circuit’s holding Tuaua.112 In contrast, in Aurelius the United States only relied on the Insular Cases before the district court and expressly disclaimed them once the case reached the Supreme Court. Still, as the district court’s decision in Fitisemanu properly demonstrates, there are clear alternative grounds to resolving the case that do not require any consideration of the Insular Cases at all. So the Court could be tempted to simply dust off its language
from Aurelius and rule that “[t]hose cases did not reach this issue, and whatever their continued validity we will not extend them [here].”113 That kind of judicial minimalism may often be appropriate or even prudent. But there is nothing normal about the Insular Cases. As First Circuit Judge Juan R. Torruella has pointedly argued, the decisions themselves created an impasse “from which there is no escape or solution by its inhabitants . . . [who] lack the political power to influence the political institutions that can make the necessary changes to th[eir] situation.”114
Territorial incorporation represents both judicial sanction of discrimination and a perpetuation of disenfranchisement from the political channels by which to challenge that discrimination.115 And just as “[o]ne cannot imagine the 1965 Voting Rights Act and other landmark civil rights legislation . . . in the absence of Brown v. Board of Education overturning Plessy,” it will surely “take a rejection of the Insular Cases . . . [for] fundamental changes to the undemocratic status quo in the territories [to] finally become possible.”116 The solution for the “constitutional antediluvian
anachronism” of the Insular Cases is clear: “The Supreme Court, as it did with Plessy, must step forward to correct the wrong it created by sanctioning the Insular Cases and their progeny.”117 Thus, if Fitisemanu ends up being taken up by the Supreme Court, the Justices should finally cross the path they have laid in Aurelius, Boumediene, Torres, and Reid to rule that the Insular Cases, like Korematsu, were “gravely wrong the day [they were] decided, ha[ve] been overruled in the court of history, and . . . ‘ha[ve] no place in law under the Constitution.’”118 B. United States v.
Baxter In 2017, during a routine inspection of mail coming into the U.S. Virgin Islands, a drug-sniffing dog alerted federal-customs agents to a package arriving from South Carolina.119 In any of the fifty states (and even Puerto Rico), the agents would have been constitutionally required to obtain a warrant before opening the parcel.120 But rather than follow this standard procedure, the agents opened the box without a warrant and found unassembled gun parts and ammunition wrapped in clothing that smelled strongly of marijuana. The recipient, Steven Baxter, was
arrested and charged under federal law with two counts of illegal transport of a firearm. At trial, he moved to suppress the evidence on grounds that the “warrantless search of the two packages violated his Fourth Amendment rights.”121 After Mr. Baxter prevailed at the district court, the Third Circuit reversed, holding that no warrant was required to search his packages in the Virgin Islands. The court reached that result by extending the Fourth Amendment’s “border search exception” to transit from the mainland United States to the U.S. Virgin Islands. But the Virgin
Islands are domestic territory. While the Supreme Court has repeatedly upheld customs searches at international boundaries or their functional equivalent,122 there is no more of an international boundary between South Carolina and the Virgin Islands than there is between California and Hawaii. The difference, the Third Circuit emphasized, is that the Virgin Islands is an “unincorporated territory” where Congress has statutorily established an artificial-customs border between it and the rest of the United States.123 The Third Circuit’s decision in Baxter flows almost
entirely from its ruling in United States v. Hyde,124 which relied squarely on the Insular Cases and the notion that unincorporated territories are not “integral part[s] of the United States,” but “merely appurtenant thereto as [] possession[s].”125 The Virgin Islands is an “unincorporated” territory, so the Third Circuit assumed Congress could create an artificial-customs border where “warrantless searches without probable cause” are not unreasonable for Fourth Amendment purposes.126 But it could only do so by distinguishing Torres v. Puerto Rico, where the Supreme
Court ruled that a warrantless search at a Puerto Rico airport by local law enforcement agents violated the Fourth Amendment.127 Torres rejected “any analogy to customs searches at a functional equivalent of the international border,”128 explaining that the border-search exception was “based on [the United States’s] inherent sovereign authority to protect its territorial integrity,” which Puerto Rico lacked.129 The Third Circuit interpreted this language to imply only that Puerto Rico lacked the power to establish a border where the Fourth Amendment’s border-search
exception would apply, not that the United States could not do so.130 Hyde’s reasoning to distinguish Torres is flawed in multiple respects. First, Torres dismissed reliance on the border-search exception not because the law authorizing the search was passed by the Puerto Rican legislature rather than Congress, but because there was no “territorial integrity” to protect between Florida and Puerto Rico.131 Second, Torres directly grappled with the Insular Cases to conclude “that the constitutional requirements of the Fourth Amendment apply” to Puerto Rico,132 making
Hyde’s reliance on them to carve out an exception to the Fourth Amendment improper.133 Finally, to the extent Hyde relies on a distinction between criminal enforcement laws passed by Puerto Rico versus those passed by the United States, that reasoning is undermined by the Supreme Court’s recent decision in Puerto Rico v. Sanchez Valle, which held that “the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government.”134 If Puerto Rico’s criminal-law enforcement is just an extension of federal-law enforcement for purposes of Double Jeopardy, as
Sanchez Valle held, then it is unclear why a distinction should be drawn between territorial versus federal-law enforcement for purposes of Fourth Amendment protections. Both Torres and Aurelius reject the kind of expansive application of the Insular Cases relied upon by the Third Circuit in Baxter and Hyde to justify a carve-out to Fourth Amendment rights in the Virgin Islands. With a petition for certiorari filed in Baxter on July 21, 2020,the Supreme Court has the opportunity to further clarify whether, particularly post-Aurelius, the Insular Cases can be read as restricting
Fourth Amendment rights in U.S. territories today.135 C. United States v. Vaello Madero In 2012, José Luis Vaello-Madero began receiving disability benefits under the Supplemental Social Security (SSI) program after he became afflicted with severe health issues.136 The SSI program provides critical financial support of about $800 a month to low-income people who are older than sixty-five, blind, or disabled.137 The next year, Mr. Vaello-Madero moved from New York to Puerto Rico to help care for his wife, who also had significant health concerns. Not realizing his
change in address meant he was no longer eligible for SSI—federal law does not extend SSI benefits to residents of Puerto Rico—he had no reason to question anything when his benefits continued. In 2016, the Social Security Administration realized the significance of his change in address and ceased payments. In 2017, the Administration filed a civil suit against Mr. Vaello-Madero to recover the $28,081 in SSI benefits it had paid him while he was a resident of Puerto Rico. Unable to pay, he argued that SSI discrimination against residents of U.S. territories violated the
Constitution’s guarantee of Equal Protection. The district court and a unanimous panel of the U.S. Court of Appeals for the First Circuit agreed, concluding that discrimination against residents of Puerto Rico with respect to the SSI program did not pass muster under even rational basis review.138 The Insular Cases figured prominently in the lower court briefing and at oral argument, with Vaello Madero arguing that the Insular Cases were evidence of racial animus towards residents of Puerto Rico and so reliance on them should warrant heightened scrutiny of Congress’s
denial of SSI benefits in Puerto Rico.139 The United States disclaimed any reliance or relevance of the Insular Cases, conceding “there is no dispute . . . that equal protection principles apply to Puerto Rico,” therefore “neither the incorporation doctrine nor the Insular Cases are relevant.”140 Ultimately, the Insular Cases were not part of either the First Circuit or District Court’s analysis. The United States has sought review of the First Circuit’s decision by the Supreme Court.141 Its request for summary reversal142 is audacious, given

At the Supreme Court, the Insular

both the First Circuit panel’s unanimous affirmation of the District Court’s decision and the significant stakes involved. Absent summary reversal, review is probable given that the lower courts struck down a federal statute as unconstitutional.

Cases are likely to continue to figure prominently in the arguments raised by Vaello Madero and amici .

, the United States’ express nonreliance on the Insular Cases may make the Court unwilling to
But if Aurelius is any indication

reconsider the Insular Cases in the context of Vaello Madero, leaving other similar equal protection
cases working their way through lower courts143 to also be resolved without reference to the Insular
Cases . Whatever the Supreme Court says or does not say about the Insular Cases, its decision in Vaello Madero will either reject or confirm the underlying structural inequality that the Insular Cases have allowed to
perpetuate these many years. And the fact that the United States is left to expressly disclaim any relevance or reliance on the Insular

Cases in cases like Vaello Madero only serves to highlight the mischief they continue to cause in all
manner of constitutional cases.

Leaving the decision on the books sends a signal that exclusion is ok --- it does harm to
human dignity by refusing to reject racist practices and policies that directly impact
people in the territories --- that is violent and undermines the credibility of the legal
system --- by creating a two-tiered rights system divided on racial lines --- it legally
codifies whiteness as coterminous with common humanity
Rice ‘23
(Daniel, Assistant Professor of Law, University of Arkansas School of Law, formerly served as Counsel at
the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. Daniel
graduated summa cum laude from the Duke University School of Law, where he served as an Executive
Editor of the Duke Law Journal and won the Constitutional Law and Civil Rights Award, “Repugnant
Precedents and the Court of History,” pg online @ https://michiganlawreview.org/journal/repugnant-
precedents-and-the-court-of-history/ //pa-ef)

five U.S. territories are currently governed in a colonial fashion due to white-supremacist
Likewise,

apprehensions at work in the century-old Insular Cases Those decisions authorize Congress to hold [*620] .

indefinitely as "unincorporated" territories any possessions deemed unready to be governed 315

" according to Anglo-Saxon principles." The resulting political subordination has blocked territorial 316

residents from addressing grave economic woes through consent-based tools of self-governance .317 And

current law's dual-tiered system of constitutional protection has enable Congress to disqualify these d

residents most of whom are American citizens from receiving much-needed forms of federal financial assistance .318

b. Expressive Degradation

The persistence of unjust precedents can inflict ongoing dignitary harms Much like . archaic state constitutional provisions319 or

racially restrictive covenants that remain formally unexpunged, such cases 320 whether through their reasoning or their results send
exclusionary signals to historically marginalized members of society These decisions espouse a civic vision of .

whiteness as "our race ,"321 of nonheterosexuals as "sexual deviate[s],"322 and of indigenous peoples as "semi-barbarous."323 As Professor Jasmine Harris has remarked, Buck v. Bell in particular " broadcast a
lasting message to those with disfavored bodies that their societal value lies not in their lives, but in ...

their deaths [*621] ."324 It was to guard against further expressive degradation that President Ford formally rescinded the executive order implicated in Korematsu decades after its final victims were released from confinement.325

these harms are experienced personally and elude easy measurement

Importantly, . The Court cannot safely assume that century-old holdings reinforcing

Nor are the justices in any position to discount the pain felt by
antiquated gender roles will not inflict fresh wounds on account of their formal survival.

territorial residents who learn that the Supreme Court ostensibly regards them as members of "alien
races. Cases that seem obscure to most practicing lawyers likely linger as hurtful reminders within
"326

communities still struggling for justice, power, and recognition Very real dignitary benefits could .

result from clarifying that these odious relics no longer express official truths about our political life.

c. Doctrinal Incoherence

Among current justices, it is uncontroversial that precedents whose underpinnings have "eroded over
time" may qualify for overruling. The persistence of warring premises dilutes
327 This tenet reveals a shared aversion to doctrinal contradiction.

the law's integrity risks practical and pedagogical confusion and undercuts the perceived capacity
, , of

principle to shape legal outcomes . It should come as no surprise when culturally archaic precedents also turn out to be "mere survivor[s] of obsolete constitutional thinking."328 A desire to straighten out existing doctrine independent of any

ethical umbrage may thus counsel repudiation of some of the precedents featured in Part III. Courts have already identified several acute tensions attributable to the formal persistence of these decisions.329

REJECT RACIAL EXLUSION --- Denial of access to assistance like SSI through the Insular
Cases normalizes civic ostracism that is facilitated interpersonally beyond the law.
Serrano ‘18
(Susan, Associate Faculty Specialist; Associate Director, Ka Huli Ao Center for Excellence in Native
Hawaiian Law; Associate Director of Legal Writing, William S. Richardson School of Law, University of
Hawai'i at Manoa, “Elevating the Perspectives of U.S. Territorial Peoples: Why the Insular Cases Should
Be Taught in Law School,” pg online @
https://scholarspace.manoa.hawaii.edu/server/api/core/bitstreams/52c2ba71-3b3d-46cb-a6e4-
717133f53469/content //pa-ef)

the Insular Cases have long-lasting

C. Ongoing Impacts of the Doctrine of Territorial Incorporation Although unacknowledged by the U.S. Supreme Court,

detrimental impacts on the peoples of the U.S. territories. Scholars assert that the Insular Cases reflect a
discourse of exclusion and frame territorial peoples as perpetual "foreigners," "outsiders," and
"others," thereby facilitating their marginalization .120 For example, legal scholar Efrin Rivera Ramos maintains that the Insular Cases
reflect "a discourse that stresses the separateness between the conquering people and the
conquered."' 2 ' For Rivera Ramos, the "doctrine of incorporation" fosters the prevailing practice of constructing "the 'other' as a
'separate,' but subordinated, identity" to justify unequal treatment.1 22

Rivera Ramos similarly recognizes that by describing Puerto Ricans as an inferior racial group incapable of self-governance,
instead of as a people with a history and aspirations, the Supreme Court "defined Puerto Ricans not as a nation, but as inhabitants

of an island that had become a possession of the United States." 23 As legal scholar Juan Perea contends, "[p]lacing the political fate and identity of
Puerto Ricans in the discretion of Congress guaranteed that racism would play a major role in shaping that fate ." 24 That racism

and denial of humanity legitimates today's continued control and exclusion . In concrete terms, that exclusion
impacts the everyday lives of the peoples of Puerto Rico, Guam, American Samoa, the U.S. Virgin
Islands, and the N orthern M ariana I slands in far-reaching ways-from the political to the economic, and the social to the cultural.1 25 Residents of the territories lack political power on
the national stage-they cannot vote in U.S. presidential elections 126 and have no voting representatives in Congress. 127 Territorial residents are statutory U.S. citizens (except for American Samoans, who are U.S. nationals), and,

as some scholars have argued, this citizenship is secondclass because Congress can revoke it at any time . 128

Justifications for legal precedent have lasting racialized effects – even if they win
positive legal victories are hollow hope, it is still true that negative legal losses are
worth preventing”
Rice ‘23
(Daniel, Assistant Professor of Law, University of Arkansas School of Law, formerly served as Counsel at
the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. Daniel
graduated summa cum laude from the Duke University School of Law, where he served as an Executive
Editor of the Duke Law Journal and won the Constitutional Law and Civil Rights Award, “Repugnant
Precedents and the Court of History,” pg online @ https://michiganlawreview.org/journal/repugnant-
precedents-and-the-court-of-history/ //pa-ef)
[*622] 2. Ongoing Risks

a. Domestic Repetition

As a nation, we are not on a constant upward trajectory. "Memory is short, political leaders change, and history
may repeat itself."330 Perhaps the most acute danger posed by repugnant precedents is that governmental
actors will convert artifacts of legal history into tools of ongoing oppression . This concern should not be overstated ethical
shifts do real deterrent work , conditioning most elected officials not to stray from America's deepest unwritten commitments. But politicians also play an active role in shaping and reshaping
those commitments. As our political marketplace continues to coarsen, policies that had become unthinkable

may regain traction in public discourse.331 Even cherished norms can erode especially if persons
seeking to undermine them can claim a grounding in positive law . In this way, surviving Supreme
Court precedents may enable malefactors to redraw ethical boundaries by downplaying those
boundaries' very existence.332 And it takes only a single nonconformist actor to make these risks a reality.

The legacy of Korematsu is instructive. Few precedents have been so roundly vilified in modern times. Even so, then-candidate Trump supported his
proposed ban on Muslim immigration by citing the example of Japanese internment, claiming that "[w]hat I'mdoing is no different than FDR."333
Although the more apt analogy would have been to the law upheld in Chae Chan Ping,334 this remark reveals the potential of repugnant precedents to ease
ethical backsliding . Such decisions may also stir dormant demons during times of crisis. Shortly after 9/11, a member of the U.S. Commission on Civil Rights warned that another terrorist attack by
nonwhites would produce "a return to [*623] Korematsu" "you can forget civil rights in this country."335 And an attorney in the White House Counsel's office privately suggested that race-based profiling at airports might be valid
under Korematsu.336 Even today, Hirabayashi could be invoked to facilitate the "mass targeting . . . of undesirables."337

it is never safe to assume that governmental actors will refrain from wielding authorities that
In short,

existing law confers on them . This risk may be especially pronounced in the American legal system,
whose apex court has admonished lower tribunals to follow its precedents until explicitly instructed
otherwise.338 In situations governed by the decisions examined in Part III, courts have often applied them faithfully if under protest.339 And
lower courts' detached descriptions of existing doctrine suggest that some judges might choose to apply, rather than distinguish, even the

Court's most ignominious holdings.340

It is
Remedial realities may further heighten this sense of permission. Under qualified-immunity doctrine, actors contemplating the implementation of a repugnant precedent have little to fear from suits for money damages.

difficult to see how a practice's unconstitutionality could be "clearly established"341 if the

[*624]

Supreme Court has explicitly declared that it passes constitutional muster. 342 And it would likely take multiple years for a legal challenge
to wend its way through the judicial process before any adverse ruling by the Court. These dynamics should not be ignored in predicting whether politicians will ever exercise powers that ostensibly attach to their offices.
And, ONLY the plan spills-over --- foreign governments model bad Supreme Court
practices and create global injustices
Rice ‘23
(Daniel, Assistant Professor of Law, University of Arkansas School of Law, formerly served as Counsel at
the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. Daniel
graduated summa cum laude from the Duke University School of Law, where he served as an Executive
Editor of the Duke Law Journal and won the Constitutional Law and Civil Rights Award, “Repugnant
Precedents and the Court of History,” pg online @ https://michiganlawreview.org/journal/repugnant-
precedents-and-the-court-of-history/ //pa-ef)

b. Foreign Imitation

As Professor James Whitman has written, "[t]he American impact on the rest of the world is not limited to what makes
Americans proudest about their country . It has also included aspects of the American past that we might
prefer to forget." The fact that the U.S. Supreme Court has condoned certain primitive practices without later
343343

recantation may embolden foreign governments to engage in those practices today . We should not
underestimate illiberal regimes' readiness to emulate the most shameful features of our legal
inheritance. As Whitman has hauntingly shown, Nazi thinkers drew upon America's experience with racialized citizenship, eugenic sterilization, Indian removal, and anti-miscegenation in crafting the legal apparatus of
344344
National Socialism. Such borrowing has also spurred racial segregation in South Africa 345345
and programs of global imperialism. Even today, autocratic governments routinely
346346

"cloth[e] their authoritarian moves in the guise of liberal democracy." 347347

The danger here is not just that foreign governments will be directly inspired by unjust Supreme Court
decisions , although that does appear to have occurred. It is that the Court's moral authority will provide them cover to [*625]
348348

implement grossly immoral practices . Even granting that American actors will not repeat these mistakes, overseas audiences may fail to
349349

343343 JAMES Q. WHITMAN, HITLER'S AMERICAN MODEL: THE UNITED STATES AND THE MAKING OF NAZI RACE LAW 16 (2017).

344344 See generally WHITMAN, supra note 343.

345345 Hermann Giliomee, The Making of the Apartheid Plan, 1929-1948, 29 J. S.AFR. STUD. 373, 377 (2003) ("In introducing the
apartheid legislation, the Nationalist leadership made it clear that their point of reference was the American South.").

346346 See CLAUDIO SAUNT, UNWORTHY REPUBLIC: THE DISPOSSESSION OF NATIVE AMERICANS AND THE ROAD TO INDIAN
TERRITORY, at xv (2020) ("The U.S.-sponsored expulsion of the 1830s became something of a model for colonial empires around
the world.").

347347 ROSALIND DIXON & DAVID LANDAU, ABUSIVE CONSTITUTIONAL BORROWING: LEGAL GLOBALIZATION AND THE
SUBVERSION OF LIBERAL DEMOCRACY 17 (2021).

348348 See D.E. v. British Columbia, 2003 BCSC 1013, para. 29 (Can.) ("In the opinion of the Alberta Institute of Law Research
and Reform(1988), Buck v. Bell unquestionably influenced the enactment of the Alberta and British Columbia sterilization
legislation."); Munshi, supra note 312, at 63 (contending that Johnson v. M'Intosh "provided the legal foundation for Indigenous
dispossession . . . in other parts of the white settler world").

349349 See ADAM COHEN, IMBECILES: THE SUPREME COURT, AMERICAN EUGENICS, AND THE STERILIZATION OF CARRIE BUCK
11 (2016) ("[A]t the Nuremberg trials that followed World War II, Nazis who had carried out 375,000 forced eugenic
sterilizations cited Buck v. Bell in defense of their actions.").
appreciate that domestic cultural transformations have stripped certain precedents of any respectability .
In this way, the mere fact of doctrinal stasis can become an adjunct to global injustice .

The plan solves – reversing the insular cases doctrine overturns “legal
institutionalization” of racialized civic ostracism.
Torres-Rios ‘22
(Nelson Torres-Ríos, J.D. 2011, Rutgers Law School, is an Attorney admitted in New York, New Jersey,
and the United States Supreme Court. He is also an Assistant Professor at Hostos Community College in
the Bronx, “racial barriers to equal protection: united states v. Vaello madero,” pg online @
https://lawrecord.com/files/49_Rutgers_L_Rec_102.pdf //pa-ef)

The court has a historic opportunity to reverse the Insular Cases

On November 9, 2021, the U.S. Supreme Court heard oral arguments in U.S. v Vaello Madero. which are

premised on three unconstitutional grounds Anglo-Saxon superiority congress’ power to administer : ,

territories indefinitely, and limited constitutional protections to the citizens in the

inhabited by “racially inferior savages”

insular areas . 78 The court is comprised of a 6-3 conservative majority. There were some surprising questions from some of the Justices, particularly Justice Gorsuch, a Trump appointee, who asked: "Why shouldn't we just admit that the Insular Cases were
incorrectly decided…why shouldn’t we just say what everyone knows to be true?” 79 Justice Thomas questioned the Territorial Clause’s80 reach as an authority allowing Congress to have a rational basis for excluding Puerto Rico: “Could you do the same thing to Vermont?” 81 Shockingly,
no one made issue of the obvious: Vermont’s demographics is 94 percent white82 while Puerto Rico is 98 percent Spanish-speaking minority83 which should prompt the court to abandon the rational basis test and apply strict scrutiny.84 The federal government insisted that it is
residence in Puerto Rico and cost, and as such rational basis applies.85 The U.S. Supreme Court, as early as 1879, dismissed that rationale: It is not impossible that a distinct territorial establishment and jurisdiction might be intended as, or might have the effect of, a discrimination against
a particular race or class, where such race or class should happen to be the principal occupants of the disfavored district. 86 During oral arguments, the government relied on the same economic argument in prior cases such as Califano and Harris claiming Puerto Rico is exempt from
excise taxes, and that less money is being taken from Puerto Rico into the general revenues at the federal level. Justice Sotomayor decided to “unpackage” the federal government’s argument focusing on U.S. citizenship, challenging the ‘unique tax status’, Puerto Rico’s contributions to
the federal government, and the design of the SSI program: “It seems to me that you are stating cost alone is not enough, cost plus something else. So let’s look at the plus of that.”87 Moreover, Justice Sotomayor went on to refute the government’s tax exemption claim, and explained
that Puerto Rico’s payments to the federal treasury exceed many of the states.88 Justice Breyer’s questioning highlighted the island’s colonial status vis-à-vis the states and their disparate treatment: “I just wonder, is that a reasonable, rational, or arbitrary thing to do for Congress to say,
you know what, we discovered a state over here, maybe it's Mississippi or maybe it's California for all I know, that when you look at how much money they contribute to Washington, proportionate to the number of SSI things, it's greater than 14 other states, so we cut them out of the
program. How long do you think that would last?89 Justice Coney-Barrett expressed concerns about the fiscal effects of affirming the lower court’s ruling and whether other benefits would apply to the residents of U.S. territories: “if there was equal treatment across the board then
questions would be raised over whether Puerto Ricans should pay federal income taxes.”90 Justice Brett Kavanaugh found the arguments to affirm the lower court “compelling” but noted that the Territory Clause allows Congress to treat territories differently than states: “It is a part of

Like the decision in

the Constitution that people would want to change but that it is not the court's role to do that.” 91 Moreover, Justice Kavanaugh specifically asked if Mr. Vaello Madero would be eligible for a waiver.92 CONCLUSION

Brown over time, the courts began to reverse race-based jurisprudence in violation of equal
, 93

protection .94 Justice Harlan’s dissent in Plessy began to serve as the guiding principle for the Court: “In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor
tolerates classes among citizens. With respect to civil rights, all citizens are equal before the law.”95 In a historic move, the lower courts are signaling to the high court that under proper scrutiny, the Insular Cases would not survive today. Specifically, the District Court explained that the
Territorial Clause is not ‘carte blanche for Congress to switch on and off at its convenience the fundamental constitutional rights to due process and equal protection’.96 More importantly, Congress cannot demean a U.S. citizen while in Puerto Rico with a ‘stigma of inferior citizenship to

that of his brethren nationwide, to do so would run afoul of the sacrosanct principle that all men are created equal under the law.’97 The U.S. Supreme Court on basis of eroding precedent , the

and equal protection has the constitutional duty to affirm the lower court’s decision
, . Justices Sotomayor,
Breyer, and Gorsuch seemed willing to eradicate second class citizenship by reversing the racially
motivated Insular Cases, thereby affirming the First Circuit’s opinion . Justice Kagan’s reference to current legislation allowing Puerto Rico to be included in SSI was

court’s deference to Congress

perhaps the most troubling as it may justify the would be , allowing the court to ignore the Insular Cases and their progeny entirely. To do so, the Supreme Court

conceding to legal institutionalization of a class of people based on race and/or ethnicity, and
the the

improper exercise of the Territorial Clause .98 The Federalist Papers outlines the duty of the court, as an arbiter, to safeguard our Constitution from majoritarian attacks, particularly when race is an issue. 99

American law values stare decisis as a principle that allows for predictability and consistency in similar cases. However, the Insular Cases, like Plessy, represent that precedent is
not immutable U.S. Supreme Court has the opportunity to revisit the
. With many lower courts withdrawing judicial endorsement of race-based decisions, the

purpose of stare decisis and whether adherence to it necessarily promotes core constitutional values . As

Puerto Rico has

in Brown, nearly six decades later, the high court reviewed lower court decisions that signaled the need to reverse Plessy’s “separate but equal” doctrine because of its violation of the Equal Protection Clause under the Fourteenth Amendment.

been relegated to second class status and less deserving of constitutional protection for over 120
years because of race Adherence to stare decisis in this case would signify that the U.S. Supreme
.

Court is in fact, a racial barrier to equal protection U.S. Supreme Court . Hence, the acting accordingly, must affirm the First
Circuit’s decision and reverse the Insular Cases
in U.S. v. Vaello Madero, .

Prioritize real-world consequences over hypothetical syllogisms – debate’s over-

emphasis on link chains precludes material solutions for colonial racism. Refuse to
sacrifice colonized peoples for a future yet to come.
Serrano, 18
[Susan K., William S. Richardson School of Law @ U-Hawaii at Manoa: “Elevating the Perspectives of U.S.
Territorial Peoples: Why the Insular Cases Should Be Taught in Law School,” Journal of Gender, Race and
Justice Vol. 21 (2018). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3488395]//AD

The majority viewed the case as one of simple statutory construction: "The plain text of the
Bankruptcy Code begins and ends our analysis."305 Any mention of the Insular Cases was
conspicuously absent. However, the Court could not have reached such a straightforward
result unquestionably affirming Congress's plenary power over Puerto Rico without reliance-
however implicitly-on the Insular Cases doctrine.
In dissent, Justice
Sotomayor, joined by Justice Ginsburg, criticized the majority for failing to read the
statute in the context of the overall statutory scheme. 306 For Justice Sotomayor, "[t]he structure of the Code and
the language and purpose of [the preemption provision] demonstrate that Puerto Rico's municipal debt restructuring law should not be read to
be prohibited by Chapter 9."307 Instead, she wrote that the preemption provision "by its terms presupposes that Chapter 9 applies only to
States who have the power to authorize their municipalities to invoke its protection."" Therefore, "[b]ecause Puerto Rico's municipalities
cannot pass through the [provision governing who may be a debtor] gateway to Chapter 9, nothing in the operation of a Chapter 9 case affects
Puerto Rico's control over its municipalities."309

Justice Sotomayor also criticized the majority for ignoring the real-world impacts on the
Puerto Rican people and for "reject[ing] contextual analysis in favor of a
syllogism."310 She contended that "[p]re-emption cases may seem like abstract discussions of the
appropriate balance between state and federal power[, b]ut they have real-world
consequences."311 She warned that preemption would imperil public services like electricity,
drinking water, roads, and public transportation. 312 She then acknowledged that Puerto Rico
would be "powerless" to avert this "looming 'humanitarian crisis.’ ”313 For these reasons, she stated that
"[s]tatutes should not easily be read as removing the power of a government to protect its citizens." 314

Justice Sotomayor's call to heed "real-world consequences" elevated the perspective of those
most affected: Puerto Rico's people. For her, the majority's decision left Puerto Rico's government
powerless to exercise a measure of self-governance to assist its people in a humanitarian crisis. That
humanitarian crisis was triggered in part when the U.S. government phased out tax incentives for U.S. corporations operating in Puerto Rico,
causing a recession.' Severe government cuts to education and healthcare directly affected families who relied on government services. 316
Public schools were closed, public workers' benefits were cut, "the sales tax was increased to 11.5%,"317 and the Department of Health
suffered $135 million in budget cuts from 2011 to 2015."'

Soon after Franklin California Tax-Free Trust was decided, Congress passed and President Obama signed the Puerto Rico
Oversight, Management, and Economic Stability Act ("PROMESA"-ironically, "promise" in Spanish), which gave sweeping
power to a seven-member financial oversight board to take over negotiations with Puerto
Rico's creditors."' Among other things, the board has the power to decide which projects are funded, to approve budgets, and to veto
debt issuances, without regard to Puerto Rico's constitution or the decisions of Puerto Rico's government.320 The oversight board's
seven members are appointed by the President of the United States, 32 ' and Puerto Rico's Governor (or
designee) is only an ex officio member.322

Many commentators argue that Puerto

Rico's inability to restructure its own debt and the concomitant
enactment of PROMESA are manifestations of U.S. colonialism that negatively impact those
already at the bottom. 323 PROMESA requires "the reduction of the federal minimum wage
from $7.25 to $4.25 an hour for workers 25 years old and younger," unchangeable by Puerto
Rico's Governor without the oversight board's approval. 32 4 In January 2017, the oversight board ordered Puerto
Rico's Governor "to present a plan that would generate $4.5 billion a year in revenue or savings through 2019" and include drastic cuts to
healthcare and higher education.3 25 The board recommended the closure of 300 public schools and teacher furloughs, and, as of May 2017,
178 schools were slated for closure and thousands of teachers' contracts were not renewed.326 It also recommended a $450 million cut over
four years to Puerto Rico's public university, though Puerto Rico's Governor has proposed a lesser, though still dire, cut of $241 million, as $450
million "would be a 'dramatic negative' that would be 'difficult for the university to absorb."'327 In addition, $850 million in Affordable Care Act
funds are slated for elimination in 2018.328 Puerto Rico's Governor acknowledged that "[t]here has to be
sacrifice everywhere," but underscored that low-income individuals without
healthcare and parents of public schoolchildren would be the hardest hit.329 This is
particularly alarming in light of Puerto Rico's twelve percent unemployment and forty-five percent poverty rates, 330 the catastrophic impacts
of Hurricane Maria,331 and ongoing massive emigration to the continental United States.332

Puerto Rico is now in the midst of a massive bankruptcy-like restructuring process pursuant to PROMESA. 333 As creditors battle over what is
due, observers point to the colonial conditions laid bare by Puerto Rico's economic crisis.334 One commentator observed that PROMESA
"continues to treat Puerto Rico and its debt as an anomaly-neither state, nor municipality, which leaves it in a nebulous space . ... ."I" Many
Puerto Ricans worry that their futures are in the hands of a faraway oversight board and
federal judge,336 who may not "take into account basic essentials of safety, health and
education."337 Others criticize the across-the-board cuts to salaries, hours, pensions, education, and services, as well as the looming
choices Puerto Ricans will have to make between basic necessities like housing and healthcare.338

In light of Puerto Rico's re-illuminated colonial status, Puerto Ricans have called for
meaningful repair of the long-standing harms of injustice . Although all focus on redressing
multiple political, economic, and social harms stemming from U.S. colonization, each group
has a different approach. For example, some have renewed their calls for statehood.339 Puerto Rico's Governor Ricardo Rosselló,
a statehood supporter, approved a non-binding referendum allowing voters to choose between statehood or independence/free association.
340 Connecting Puerto Rico's financial crisis with its colonial status, Governor Rosselló argued,
"If we compare ourselves with the other 50 states, the fundamental difference is our lack of rights, our lack of participation, and our lack of
resources to move our jurisdiction forward. . . . Our colonial condition creates a situation of incredible
inequality."341
FOOTNOTE 341: Wyss, supra note 325 ("The United States is always demanding democracy in other
parts of the world, ... but it seems to me it doesn't have the moral standing to demand democracy in Venezuela or Cuba if it
won't extend [democracy] to 3.5 million of its own citizens. " (alteration in original) (quoting Governor Rosselló)).

Reject the “1% risk of extinction” doctrine – it doesn’t just collapse ethical
policymaking, it collapses all policymaking. Probability should come first and should
be a prior question – anything else turns policy debate into a race to find the biggest,
baddest impacts.
Meskill ‘9
(David, professor at Colorado School of Mines and PhD from Harvard, “The "One Percent Doctrine" and
Environmental Faith,” Dec 9, http://davidmeskill.blogspot.com/2009/12/one-percent-doctrine-and-
environmental.html)

Tom Friedman's piece today in the Times on the environment (http://www.nytimes.com/2009/12/09/opinion/09friedman.html?_r=1) is one of the flimsiest pieces by a major
columnist that I can remember ever reading. He applies Cheney's "one percent doctrine" (which is similar to the environmentalists' "precautionary

principle") to the risk of environmental armageddon. But this doctrine is both intellectually incoherent and
 practically irrelevant . It is intellectually incoherent because it cannot be applied consistently in a world with many
potential disaster scenarios. In addition to the global-warming risk, there's also the asteroid-hitting-
the-earth risk, the terrorists-with-nuclear-weapons risk (Cheney's original scenario), the super-duper-pandemic risk,
etc. Since each of these risks, on the "one percent doctrine," would deserve all of our attention, we
cannot address all of them simultaneously. That is, even within the one-percent mentality, we'd have
to begin prioritizing, making choices and trade-offs. But why then should we only make these trade-offs between responses to disaster scenarios?
Why not also choose between them and other, much more cotidien, things we value? Why treat the unlikely but
cataclysmic event as somehow fundamentally different, something that cannot be integrated into all the other calculations we make? And in
fact, this is how we behave all the time. We get into our cars in order to buy a cup of coffee, even though

there's some chance we will be killed on the way to the coffee shop . We are constantly risking death,
if slightly, in order to pursue the things we value. Any creature that adopted the "precautionary
principle" would sit at home - no, not even there, since there is some chance the building might collapse. That creature would neither be able to act, nor
not act, since it would nowhere discover perfect safety . Friedman's approach reminds me somehow of Pascal's wager - quasi-religious faith
masquerading as rational deliberation (as Hans Albert has pointed out, Pascal's wager itself doesn't add up: there may be a God, in fact, but it may turn out that He dislikes, and even damns,
people who believe in him because they've calculated it's in their best interest to do so). As my friend James points out, it's striking how descriptions of the environmental risk always describe
the situation as if it were five to midnight. It must be near midnight, since otherwise there would be no need to act. But it can never be five *past* midnight, since then acting would be
pointless and we might as well party like it was 2099. Many religious movements - for example the early Jesus movement - have exhibited precisely this combination of traits: the looming
apocalypse, with the time (just barely) to take action.

Our Legal Education is UNIQUE and NECESSARY --- telling and re-telling the story of the
1AC is necessary to break-down racism in Puerto Rico by drawing attention to the laws
and placing pressure on lawmakers and the court to REVERSE status quo policies and
ensure equal protection
Gomez-Velez ‘23
(Natalie, Professor of Law, City University of New York (CUNY) School of Law, “SYMPOSIUM: An
Anomalous Status: Rights and Wrongs in America's Territories: DE JURE SEPARATE AND UNEQUAL
TREATMENT OF THE PEOPLE OF PUERTO RICO AND THE U.S. TERRITORIES,” 91 Fordham L. Rev. 1727, pg
Nexus //pa-ef)

This history and current context must be communicated to a broader U.S. audience. It should be a central component
of American curricula in history, civics, and constitutional law. It must also be more robustly engaged with in public discourse , with the hope
that most people of good faith in the United States would view colonization as intolerable, given their country's constitutional commitments and support for democracy, sovereignty, and self-
determination around the world. As the United States confronts systemic racism and a related backlash ostensibly centered on banning the teaching of "divisive concepts,"214 this is a
particularly salient moment to elevate and address the question of U.S. colonialism and hypocrisy.215 [*1756] B. Puerto Rico and the U.S. Territories' Political-Process Problems: Colonialism
Denies Both U.S. Representation and Economic and Political Autonomy The plight of the U.S. territories is further obscured by the very colonial structure they seek to overcome. The territories
exist in constitutional limbo, as they are considered to be "foreign in a domestic sense."216 They are neither states nor independent sovereigns. Under this unincorporated status, only
constitutional guarantees not deemed "impractical and anomalous" apply.217 The territories lack voting rights and voting representation in Congress under the constitutional structure.218
They also lack economic and political autonomy. This is evidenced by the unequal and exploitative treatment that caused Puerto Rico's unsustainable public debt219 and the denial of Puerto
Rico's self-governance or self-determination in addressing that debt.220 This political-process problem places the territories in an impossible position. They consist of populations of discrete,
insular, and disfavored minorities without political power who have to persuade the legislative, executive, and judicial branches to address their separate and unequal status. Recent
developments indicate that the Supreme Court will do little, if anything, to address the untenable status of the territories. The current Court shows scant interest in advancing progress toward
equality or improving racial equity and justice Vaello Madero is just one example.221 As Joshi notes, "[i]f the Supreme Court is unable to implement solutions . . . and [*1757] continues to

a full range of tools

reinforce rather than resolve disputes over America's historical legacies, other segments of society will need to take the lead."222 Thus,

organizing , advocacy , legislation, and policy change is needed. All of this, however, must begin with
education , through a full account of U.S. history and law based on facts . Education about the Insular
Cases as current, de jure discrimination is important to this effort. It encourages those who would
otherwise distance themselves from structural and systemic racism to reckon with it . It challenges
those who would censor discussions about inequality based on race to argue that the origins and
implications of current law should not be taught . Most of all, education highlights the urgent need to examine notions of U.S. identity as a world
leader in democracy, liberty, equality, human rights, and anti-colonialism if we are to live up to those ideals. CONCLUSION As Vaello Madero and several recent cases
show, continued advocacy before the Supreme Court appears necessary, even though it has been
largely futile thus far. In particular, persuading the Court to overturn the Insular Cases, to apply full
constitutional guarantees to the territories, and to limit the sweep of the Territorial Clause by requiring a determination on
deannexation or statehood are important. They are, however, likely unrealistic goals at the moment. Perhaps more important is pressuring Congress to address the

U.S. colonies problem. Enlisting various communities of interest both within the United States and beyond
is also essential. Bringing in the broader context of U.S. ideals of freedom, equality, sovereignty, and self-determination, while explaining how
territorial status relates to structural racism , can help various constituencies "see" the connections
between the colonies problem and the struggle to achieve true reconstruction. All of these efforts
require education about history and the state of the law . The fact that the Insular Cases are rarely taught
in history classes or law schools shows what erasure from the record can mean for marginalized [*1761]
people. The fact that the Insular Cases remain on the books even after Vaello Madero and other cases clearly demonstrate the stark and cruel
effects that the incorporation doctrine has had in denying equal protection to U.S. citizens solely because they reside in the U.S.
"colony" of Puerto Rico. And it shows just how difficult the battle for racial justice can be even when the facts are presented in a clear

and direct way. The truth about American history and its relationship to current law and social organization must

continue to be told .244 This retelling is especially urgent at a time of racial reckoning . Now more than
ever, we must confront forces actively engaged in efforts to obscure relevant history, current law, and
proven facts as a means of maintaining and reinforcing deeply ingrained and unacceptable inequality
in law. Confronting these forces is crucial to fulfilling the American promises of self-governance, equal justice, and equal
protection.

Gorsuch and Roberts GUTTED stare decisis --- undermined Korematsu decision as part
of an intro to Trump v. Hawaii
Rice ‘23
(Daniel, Assistant Professor of Law, University of Arkansas School of Law, “Repugnant Precedents and
the Court of History,” pg online @ https://michiganlawreview.org/journal/repugnant-precedents-and-
the-court-of-history/ //pa-ef)

Judicial precedents, like well-placed sculptures, can signify what America does and does not stand for. It is not hard to identify
Supreme Court decisions that have come to memorialize prevailing cultural values. For example, our society no longer debates whether interracial cohabitation should be criminalized,6
whether women should be exempted from jury service,7 whether foreign-language instructors should be imprisoned,8 or whether chicken thieves should be sterilized.9 Practices like these are
worse than unlawful they are un-American. In the normative universe we occupy, it is simply inconceivable that the justices might reverse course and deem them constitutional. But
precedent's intrinsic durability has a darker side. Supreme Court decisions like timeworn statues can linger long after their ethical foundations have crumbled.10 According to the law on the
books, children of any age may be conscripted into the military;11 nonwhites may be forbidden to enter the country12 or become naturalized citizens;13 women "of lewd character" may be
confined to residential ghettos;14 American-flag merchandise may be criminalized;15 and states may require able-bodied persons to performuncompensated labor on public roads.16 It might
seem unthinkable that such abhorrent policies would be attempted today. But in a sense, that is precisely the problem: precedents become harder to dislodge as the practices they validate fail

This dynamic was made manifest in

[*580] to reemerge.17 For this reason, constitutional doctrine is teeming with artifacts that are culturally unrecognizable.

the Court's recent Trump v. Hawaii18 decision. Hawaii upheld the Trump administration's stringent
immigration restrictions from several predominantlyMuslim-majority countries.19 Yet this petitioned-for outcome packed a
surprise : the Court's seeming repudiation of Korematsu v. United States.20 Decades before, Korematsu had sunk into the anticanon of
American constitutional law a notorious example of sacrificing constitutional values to perceived military necessity.21 Two modern Supreme Court nominees

had even refused to acknowledge the case's precedential status .22 But without a revival of race-based security measures, it was unclear
how the justices could remove this lingering stain on the legal system. An inter-Court exchange eventually brought Korematsu to the

surface. Dissenting in Hawaii, Justice Sotomayor drew upon Korematsu's "sordid legacy" in accusing her
colleagues of "redeploy[ing] the same dangerous logic" underlying that decision.23 Chief Justice Roberts,
speaking for the Court, recoiled at this comparison . Far from distinguishing Korematsu solely on legalistic grounds, he denounced
the exclusion order it upheld as "morally repugnant." 24 The Court closed with a verdict as sonorous as it was
conclusory: that Korematsu was "gravely wrong the day it was decided" and had been "overruled in the court of history."25 Indeed, the
This apparent break with precedent was highly unorthodox .
Hawaii majority was simply "mak[ing] express what [was] already obvious."26 [*581]

By attributing Korematsu's overruling to a metaphorical entity, the justices implied that external
cultural forces with no direct judicial input can transform a previously sanctioned practice into one
that is "obvious[ly]" unlawful. And in characterizing Korematsu's downfall as a fait accompli, the Hawaii majority elided any
discussion of the factors that ordinarily govern the stare decisis inquiry , such as a decision's practical workability, its
consistency with earlier and later opinions, the quality of its reasoning, and the extent of relevant reliance interests.27 The Court instead suggested that
"morally repugnant" decisions deserve to be scrapped without the usual procedural courtesies . All of
this was new: for the first time, the Court bypassed its stare decisis framework for the ostensible
purpose of vindicating core national values.28 It is tempting to view this development as a peculiar one-off, an improvised erasure of a singularly
problematic precedent.29 But Korematsu's formal passing should not be written off as a meaningless aberration . It is
always worth studying novel mechanisms of doctrinal change with an eye toward disciplining their future use.30 And, more to the point, the court of history represents one plausible response

to an ongoing systemic difficulty the problem of societally obsolete precedents. Indeed, the Court's decision to invoke that metaphor in such a prominent context greatly
elevated its visibility in our legal culture. In 2020, for example, Justice Kavanaugh asserted that "[t]he court of history" had repudiated not only Korematsu
but also unspecified decisions giving short shrift to "free-speech principles" during wartime.31 Lower courts have likewise begun employing the

concept for its precedent-dashing potential.32 [*582] And constitutional advocates have invoked the court of history routinely since Hawaii.33 At a time
when scholars and jurists are hotly debating precedent's proper role34 and when the Court's changed composition augurs significant doctrinal revision it is essential to understand any

technique that would sideline the stare decisis inquiry entirely .

And, the court has made LIBERAL, UNEXPECTED, and ACTIVIST decisions now
Stepansky 7/4/23
(Joseph, “US Supreme court continues conservative lurch in recent decisions,” pg online @
https://www.aljazeera.com/news/2023/7/4/us-supreme-court-continues-conservative-lurch-in-recent-
decisions //pa-ef)

The United States Supreme Court last week ended its term with a series of rapid-fire decisions that provoked outrage
and surprise , particularly on the political left. What was not surprising, analysts told Al Jazeera, is that the court’s decisions skewed towards the right — a reflection of the six-to-

three conservative majority that took shape under former President Donald Trump. In the course of days this past June, the court delivered a wide range of conservative rulings. In one case, it sided with a website designer who refused services to same-sex couples. In another, it

ended affirmative action at colleges and universities. It also nixed President Joe Biden’s student loan forgiveness plan, stymying one of the Democrat’s signature policy proposals. That rightward trend — mixed with recent ethics concerns about

is unlikely to improve tanking public opinion about the court

justices receiving luxury travel from donors — , according to Lawrence Douglas, a professor of law, jurisprudence and

a dramatic erosion in respect the court enjoys among the American people
social thought at Amherst College. “We’ve really seen pretty the that ,”

Douglas told Al Jazeera. “And I’m not sure that anything that happened in this term is really going to kind of shore up that respect.” Nevertheless, some less-expected decisions indicate “key lines of division” among the court’s conservative justices, according to Thomas Keck, a professor

of political science at Syracuse University. Keck pointed to one surprise decision — Allen v Milligan — that saw Justices John Roberts and Kavanaugh side with their
Brett

liberal colleagues knock down racially gerrymandered voting districts in Alabama

to . Justice Amy Coney Barrett has
also shown a willingness to break ideological lines . “It’s not that [those three justices] are less conservative, but it’s that they are tempering the sort of conservative-movement demands with other

considerations,” Keck told Al Jazeera. That’s particularly true in the case of Roberts, Keck added. As chief justice, Roberts “clearly wants to be a little more cautious and incremental” to maintain the court’s reputation among the public. The trio stands in contrast with their fellow

conservatives Clarence Thomas, Samuel Alito and Neil Gorsuch, who are “very firmly convinced of the rightness of their views and they’re very impatient to impose those views”, Keck said. Questions of ‘judicial activism’ To be sure, Keck said, the
“dominant theme” of the court’s recent term is that the bench remains staunchly conservative. Over the last two years, the conservative supermajority has overseen
“multiple, rapid” shifts in the law that appear “ideologically driven ”. Those shifts were perhaps best exemplified by the June 2022 decision overturning Roe v
Wade , the landmark 1973 ruling that created federal protections for abortion. Another ruling that year upended the federal government’s ability to restrict greenhouse gases . Meanwhile, Bruen v New York threw

into question the longstanding ability of state and local authorities to restrict aspects of gun ownership Decisions . like those, made in quick succession , contributed to
declining public opinion and charges of “judicial activism” — the idea that rulings are made based on politics and not legal readings of the US
Constitution , Keck explained. An ABC News/Ipsos poll, conducted between June 30 to July 1, found that 53 percent of respondents believed the justices based their rulings mainly on their political beliefs. That is a spike of 10 percentage points since January 2022.
Biden himself seemed to criticise the court’s partiality. In a speech denouncing the affirmative action ruling, he said the court had “walked away from decades of precedent” by striking down the policy, which had allowed race to be used as a consideration in college admissions. As he
walked out of the room, a reporter asked him if the court had gone rogue. “This is not a normal court,” Biden responded. “Take a look at how it’s ruled on a number of issues that have been precedent for 50, 60 years sometimes. And that’s what I meant by not normal,” Biden later
explained on MSNBC. “Across the board, the vast majority of the American people don’t agree with majority of decisions the court is making.” While polls consistently indicate a majority of Americans disapprove of the court’s rejection of Roe v Wade, public sentiment has been more
mixed about last month’s rulings. The ABC News/Ipsos poll found a slight majority supported the Supreme Court’s ruling on affirmative action. But public opinion was split for the court’s decision on Biden’s loan plan and the ruling that determined a web designer could deny her services
for gay weddings. Still, Biden’s statements tap into the larger question of whether the Supreme Court should reflect the public’s understanding of their constitutional rights. “Certainly, it is the case that the court is meant to kind of be above public opinion and certainly is not supposed to
be directly swayed by public opinion,” said Douglas, the Amherst College professor. “On the other hand, is the court meant to be radically out of touch with what we might describe as the constitutional meanings of the American people? There, I would think the answer’s no.” Calls for
reform For their part, Democrats have seized on questions of court bias to renew long-shot pushes for court reform. In the wake of the affirmative action ruling, US Representative Hank Johnson highlighted a bill that would expand the number of justices on the court to 13. “This judicial
activism must be met with passage of my legislation to expand SCOTUS [Supreme Court of the United States],” Johnson said in a statement following the ruling. Congress has previously added seats to the court seven times — though the last expansion came in 1869. Former Speaker of
the House of Representatives Nancy Pelosi, meanwhile, endorsed term limits for justices, who currently serve for life. She highlighted recent reports that Justices Thomas and Alito received undisclosed trips from Republican mega-donors who had business before the court, raising ethical
concerns. Both justices have denied wrongdoing. “It’s shameful how Justice Thomas and Justice Alito have been so cavalier about their violations,” Pelosi told MSNBC. She too called for reform of court procedures: “Here we have a body, chosen for life, never have to run for office,

Questions about the ethical authority of the

nominated, confirmed for life with no accountability for their ethics behaviour.” US top court bans colleges from considering race in admissions

Supreme Court — and perceived conflicts of interest — could have long-term consequences , according to experts like Douglas. The court has been called upon to intervene in hotly contested elections, like

the 2000 presidential race. With the 2024 elections on the horizon, Douglas warned that a similar scenario could happen again, making public confidence in the court a necessity for the peaceful transfer of power. “You really want to make sure that the court enjoys enough prestige so
that whatever decision it makes would be seen as solving a constitutional crisis, rather than exacerbating it,” Douglas said.