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The Supreme Court has overruled racist precedents that allowed for segregated accommodations for blacks and whites and permitted the internment of Japanese-Americans during wartime.
Now, the court must overturn a precedent on the books that grants residents of Puerto Rico and other U.S. territories second-class status under the Constitution, the American Civil Liberties Union told the justices in a friend-of-the-court brief submitted this week.
The precedent the ACLU is seeking to overturn was established in a series of early 20th century disputes known as the "Insular Cases."
The court held in those cases, decided between 1901 and 1922, that U.S. citizens living in so-called "unincorporated territories" were not entitled to the same constitutional protections as other Americans. The territories are home to about 4 million people, the vast majority of whom live in Puerto Rico.
That doctrine, the civil rights group said, is "no less offensive" than the one established by the 1896 "separate but equal" decision in Plessy v. Ferguson, which was not overturned until Brown v. Board of Education of Topeka was handed down by a unanimous court in 1954.
The ACLU's brief is scathing. Adriel Cepeda Derieux, an attorney for the group, wrote that the cases are a "glaring anomaly in the fabric of our constitutional law" that "explicitly rest on anachronistic and deeply offensive racial cultural assumptions."
To this day, he wrote, the doctrine "casts a pall on the rights of residents of Puerto Rico, including more than three million U.S. citizens, and close to 500,000 more in other so-called 'unincorporated territories.'"
The brief came in connection with a case over the constitutionality of the financial oversight board established for Puerto Rico by Congress in 2016, in the midst of a financial crisis on the island. The federal appeals court in Boston held that appointments to the board were inconsistent with the Appointments Clause of the Constitution, but the board is asking the top court to reverse the decision on the grounds that the clause does not apply.
The brief was filed on Thursday, as President Donald Trump was criticizing Puerto Rico for being in the path of a tropical storm and accusing the island's leadership of incompetence and corruption.
Cepeda Derieux wrote that the ACLU takes no position on the broader merits of the case — or, tangentially, on the issue of Puerto Rican statehood — but urged the justices to use the case as a vehicle to scrap the Insular Cases once and for all.
"It is very difficult to rely on these cases on the face of them, because of how glaringly and unabashedly racist their reasoning is," Cepeda Derieux said in an interview. "Not only do the Insular Cases say nothing about the Appointments Clause, but to look to them here is to give them exactly the sort of expansion that the court has warned against."
Starting in the 1950s, the top court began walking back the doctrine. In the 1957 case Reid v. Covert, the justices held that its reasoning should not go beyond the specific constitutional provisions that were addressed in the cases themselves, namely matters involving taxation and certain Fifth and Sixth Amendment rights, including jury trials.
But lower courts have applied the reasoning beyond those areas. In 2016, the federal court in Puerto Rico ruled that same-sex marriage, upheld the year before by the Supreme Court in Obergefell v. Hodges, had not been incorporated on the island. The 1st Circuit later reversed the decision.
In a 1999 case, a federal court cited the Insular Cases to decide that the principle of "one person, one vote" was not a fundamental right of residents on the Northern Mariana Islands.
"Since it is clear that the 'one man, one vote' principle is not a right that is the 'basis of all free government,' it need not be applied in and to an unincorporated territory such as the Commonwealth," District Judge Alex Munson wrote.
"Lower courts have wrestled with these cases," Cepeda Derieux said, "and because these cases have a shorthand framework where it says that fundamental rights are the only rights that apply in the territories, that is a framework that lower courts have looked to and used in contexts where it shouldn't apply and have used as a lens to apply the entire Constitution throughout the territories."
The Supreme Court only rarely overturns its own precedents, generally abiding by a principle known as "stare decisis," which puts a high bar on reversing decisions it has made in the past. Between 2010 and 2018, fewer than 10 decisions on matters of constitutional law were reversed, according to a government report.
Sometimes it takes a long time for decisions to be overruled, even if they are despised. Korematsu v. United States, the 1944 decision that upheld the internment of Japanese-Americans during the Second World War, was only overturned last year, in Trump v. Hawaii, the decision that allowed for Trump's travel ban to take effect.
"Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — 'has no place in law under the Constitution,'" Chief Justice John Roberts wrote in the opinion.
The Puerto Rico dispute is set to be argued in October, and a decision is expected by June 2020.