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Legal Territory

Neil Gorsuch Has a Critical Race Theory About Puerto Rico

The justice’s recent opinion takes a strong stance against the shameful way the United States has ruled over the territory.

Drew Angerer/Getty Images
Justice Neil Gorsuch

The United States of America, as a name, is slightly misleading. It’s true that this country consists mostly of 50 states bound together in a federal union. It’s also true that, for various historical reasons, the United States also includes a constellation of territories that it acquired in the nineteenth and early twentieth centuries. Some of these lands, like Hawaii and Alaska, have since joined the Union as states. Others, like the Philippines, are now independent countries.

And then there are some, most famously Puerto Rico, that occupy a liminal space in the American empire. In a concurring opinion last week in United States v. Vaello-Madero, Justice Neil Gorsuch sought to close that gap by revisiting a group of the court’s most controversial rulings. “A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution,” Gorsuch wrote. “It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

Gorsuch’s call to overturn the Insular Cases is notable in and of itself. While the Supreme Court has signaled its unease with those precedents in recent years, he is one of only two sitting justices who has expressly said they should be scrapped. (In a footnote in her dissent in Vaello-Madero, Justice Sonia Sotomayor said she agreed with her colleague’s position on the cases.) What makes his concurring opinion even more interesting is what it says about how Gorsuch approaches the more uncomfortable chapters of American history, in this case and in others—and what it might mean for how he decides future cases.

Vaello-Madero, on its surface, is about a bureaucratic error in the Supplemental Security Income program, which generally provides benefits to people with disabilities. Jose Luis Vaello-Madero, the case’s namesake, moved back to Puerto Rico in 2013 after years of living in New York. He had collected SSI payments while in New York and continued to do so after his change in residence. Congress, however, had only authorized the program within the 50 states, the District of Columbia, and the Northern Mariana Islands. When the Social Security Administration discovered its mistake, it sued Vaello-Madero to recoup more than $28,000 it had sent him.

Vaello-Madero countered that it was unconstitutional for the federal government to deny him SSI benefits simply for moving somewhere else within the United States. Judge Gustavo Gelpí, who served on the federal district court in Puerto Rico at the time, ruled in Vaello-Madero’s favor and concluded that Congress could not “demean and brand” him with “a stigma of inferior citizenship” for living there. The First Circuit Court of Appeals agreed, ruling that the agency’s actions had violated his equal protection rights under the Fifth Amendment’s Due Process Clause.

Justice Brett Kavanaugh’s six-page majority opinion is a monument to brevity. He does not discuss Puerto Rico’s colonial history except to note that “for various historical and policy reasons,” Congress “has not required residents of Puerto Rico to pay most federal income, gift, estate, and excise taxes.” At the same time, Kavanaugh noted, Congress has also excluded Puerto Rico from various federal programs and benefits. Writing for an 8–1 majority, he argued that the Constitution’s Territory Clause gives Congress the discretion to make those decisions when administering the territories.

“Exercising that authority, Congress sometimes legislates differently with respect to the territories, including Puerto Rico, than it does with respect to the States,” Kavanaugh wrote. “That long-standing congressional practice reflects both national and local considerations. In tackling the many facets of territorial governance, Congress must make numerous policy judgments that account not only for the needs of the United States as a whole but also for (among other things) the unique histories, economic conditions, social circumstances, independent policy views, and relative autonomy of the individual territories.”

Sotomayor, whose parents hailed from Puerto Rico, wrote the only dissenting opinion. She argued that excluding Puerto Rico from the SSI program failed the rational-basis test, which generally bars Congress from passing wholly irrational or arbitrary laws. The test is usually almost impossible for the government to fail. “SSI is designed to support the neediest citizens,” Sotomayor wrote. “As a program of last resort, it is aimed at preventing the most severe poverty. In view of that core purpose, denying benefits to hundreds of thousands of eligible Puerto Rico residents because they do not pay enough in taxes is utterly irrational.”

But it was Gorsuch who would lay out the most surprising take on the matter, in some ways going further than even Sotomayor did in the dissent. In a concurring opinion, he denounced a series of Supreme Court decisions that laid out the constitutional order in the former Spanish imperial possessions. Collectively, these rulings are known as the Insular Cases. In Downes v. Bidwell, which is often seen as the first of them, the Supreme Court upheld a customs law passed by Congress on imports from Puerto Rico, which appeared to violate the Constitution’s command that all customs duties be uniform “throughout the United States.” To uphold the law, the court defined Puerto Rico as an “unincorporated territory” where the Constitution’s full scope does not apply, as opposed to an “incorporated territory” where it remains in full force.

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“The flaws in the Insular Cases are as fundamental as they are shameful,” Gorsuch wrote in his concurring opinion last week. “Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating territories and the people who live in them on the basis of race, ethnicity, or religion.”

Indeed, in addition to their strained reading of the Constitution, the court’s decisions also unambiguously rest upon racist perceptions of the newly acquired territories. The turn-of-the-century justices, drawing upon the sentiment of the time, argued that American self-government was not appropriate for the nation’s new colonies. “It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians,” Justice Henry Brown wrote for the plurality in Downes.

That conclusion led to the deprivation of fundamental rights throughout the American colonies. In the 1922 case Balzac v. Puerto Rico, for example, the court held that the constitutional right to jury trials—a bedrock element of the American legal system— did not extend to the island. “On the Court’s account,” Gorsuch wrote while summarizing the court’s ruling, “Puerto Rico’s ‘localities’ included ‘compact and ancient communities’ that had not yet developed the ‘impartial attitude’ or ‘conscious duty of participation’ required of citizens by the ‘Anglo-Saxon’ jury trial.”

This isn’t the first time that Gorsuch has reckoned with the more tragic chapters of American history. Shortly after his confirmation in 2017, the justices faced an unusual dispute over tribal sovereignty in Oklahoma. Two cases involving tribal members who committed crimes against other tribal members, Sharp v. Murphy and McGirt v. Oklahoma, compelled the justices to consider whether the reservations of the Five Civilized Tribes still legally existed. Under the court’s precedents, only Congress can disestablish a tribal reservation, and it must do so explicitly. Gorsuch, joined by the court’s four liberals, ruled that it hadn’t and that the reservations still lawfully existed.

If Gorsuch had simply written that in his majority opinion and nothing more, McGirt would have been one of the most important Indian law decisions in the last two decades. What really set his opinion apart was the sheer moral force that he brought to bear in it. “At the end of the Trail of Tears was a promise,” he said in his opening line. Gorsuch made a simple point—that the United States had promised those lands to the tribes in the nineteenth century and had not explicitly revoked that promise since then—and then hammered the dissenting justices and the state of Oklahoma for trying to set it aside.

“Just imagine what it would mean to indulge that path,” he wrote. “A state exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.”

A few months before McGirt, Gorsuch also wrote the majority opinion in Ramos v. Louisiana, where the court struck down laws that allowed state juries to convict people without unanimous verdicts on their guilt. Writing for the court, he did not shy away from raising the sordid history of nonunanimous jury verdicts. Louisiana and Oregon, the only two states that recently had such laws on the books, both adopted them to preserve white supremacy: the former at a state constitutional convention that entrenched a wave of Jim Crow in the state Constitution, and the latter while state politics were under the sway of the Ku Klux Klan. “No one before us contests any of this; courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective non-unanimity rules,” he wrote.

Gorsuch’s willingness to wrestle with historical wrongs isn’t without its critics. Justice Samuel Alito ridiculed his invocation of Jim Crow and the Ku Klux Klan in a dissenting opinion in Ramos. “Some years ago the British Parliament enacted a law allowing non-unanimous verdicts,” he snarked. “Was Parliament under the sway of the Klan? The Constitution of Puerto Rico permits non-unanimous verdicts. Were the framers of that Constitution racists? Non-unanimous verdicts were once advocated by the American Law Institute and the American Bar Association. Was their aim to promote white supremacy? And how about the prominent scholars who have taken the same position? Racists all? Of course not. So all the talk about the Klan, etc., is entirely out of place.”

Alito may have misapprehended Gorsuch’s use of history, as his colleague himself suggested: Gorsuch wrote in a footnote that the Sixth Amendment would still forbid nonunanimous jury verdicts in any event. But the two may have been talking past one another. Alito chastised his colleague by saying that the court “should set an example of rational and civil discourse instead of contributing to the worst current trends.” It’s unclear what exactly Alito meant by “worst current trends”; perhaps it was a reference to national discussions about racism and American history that year. It’s possible that Alito, for whatever reason, found allusions to that history in the court’s hallowed halls to be inappropriate, as if the acknowledgment of them by a Supreme Court justice—and a conservative Supreme Court justice, no less—would be particularly harmful in some way.

It might be tempting for casual observers to reduce Gorsuch’s approach to these cases as “wokeness,” at least in the pejorative sense used by conservatives, as Alito may have feared in Ramos. It’s true that Gorsuch also parted ways with the court’s other conservative justices in Bostock v. Clayton County, where he led the court in ruling that Title VII protects gay and transgender Americans from workplace discrimination. But the label would also be at odds with other aspects of Gorsuch’s judicial record, most notably his vote last year in Brnovich v. Democratic National Committee to narrow the Voting Rights Act of 1965. Whether someone is “woke” is also a fairly poor analytical frame to begin with.

Some legal observers, myself included, have attributed Gorsuch’s unique approach to tribal cases like McGirt to his previous service on the Tenth Circuit Court of Appeals, which covers a large swath of the Mountain West and hears more cases involving Native American issues than most other circuits. But familiarity would not explain his strident concurring opinion in Vaello-Madero; none of the various U.S. island territories fall under the landlocked Tenth Circuit’s jurisdiction. His approach in these cases appears to be at least partly driven by a firm belief that judges cannot shy away from the worst parts of American history and that that history should shape and influence how present-day courts view the law.

Another thing that stands out in these cases is his apparent lack of concern for the practical effects of his rulings. It is one thing to acknowledge that the United States has committed wrongs; it is another thing to force the country to actually reckon with them. More than most of his colleagues, Gorsuch appears not to mind the disruptions that accompany his rulings. Oklahoma leaders warned in McGirt that recognizing the tribal reservations’ continued existence would upend the state’s legal system. Louisiana and Oregon claimed in Ramos that thousands of convictions could be unsettled if the nonunanimous jury verdict rules were struck down. In both cases, Gorsuch brushed those concerns aside, arguing that the rule of law articulated by the court should prevail.

It’s worth noting that Gorsuch’s damn-the-consequences approach to major Supreme Court cases isn’t without its drawbacks. Sometimes, as in Bostock, his opinions will leave conservatives apoplectic. More often than not, it will be liberals who are frustrated. As Vox’s Ian Millhiser noted in a lengthy critique of Gorsuch’s jurisprudence last year, the justice’s stance in a case on presidential appointment powers last year would have, if it had been adopted by the majority, at least partially collapsed the American housing market. But his willingness to achieve what he sees as the correct result, combined with a level of historical empathy unusual for a sitting justice, may bode well for those burdened by the mistakes of the American past.