A bipartisan group of 43 House and Senate leaders is calling on the U.S. Department of Justice to condemn and cease its reliance on the Insular Cases, a series of racist U.S. Supreme Court decisions that broke from prior precedent to justify colonial governance in U.S. territories.  Today they held a press conference on Capitol Hill, joined by civil rights groups and other allies who are calling on the Justice Department to act.

The Insular Cases stand alongside infamous decisions such as Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States. Yet unlike those decisions, the Insular Cases continue to be defended by the Justice Department. The congressional letter was led by House Resources Ranking Member Raúl M. Grijalva and Virgin Islands Congresswoman Stacey Plaskett, along with 28 House members and 15 Senators. Notably, Senate Judiciary Chair Dick Durbin, House Judiciary Ranking Member Jerrold Nadler, and seven other members of the Senate and House Judiciary Committees joined in the call for the Justice Department to take action. 

Click to watch highlights from the press conference

The congressional letter follows a filing by the Justice Department last month in which it stated that “aspects of the Insular Cases’ reasoning and rhetoric, which invoke racist stereotypes, are indefensible and repugnant,” begging the question which “aspects” of the Insular Cases it continues to embrace.

“The Justice Department has made strides in the right direction by criticizing ‘aspects’ of the racist Insular Cases as ‘indefensible and repugnant.’ But it is time for DOJ to go further and unequivocally reject these racist decisions, much as it has for other Supreme Court opinions that relied on racist stereotypes that do not abide by the Constitution’s command of equality and respect for rule of law,” said Ranking Member Grijalva.

“The Justice Department has a crucial opportunity to take the lead in rejecting the Insular Cases. For far too long these decisions have justified a racist and colonial legal framework that has structurally disenfranchised the 3.6 million residents of U.S. territories and denied them equal constitutional rights. Neither the DOJ nor anyone else should be defending any ‘aspects’ of the racist Insular Cases,” said Congresswoman Plaskett. 

“The Insular Cases are a stain on the history of our country and its highest court. To this day, these decisions still impact those who live in U.S. territories. We need to acknowledge that these explicitly racist decisions were wrongly decided, and I encourage the Department of Justice to say so,” said U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee.

“The Department of Justice stands at a pivotal moment to correct a historic injustice and end the second-class treatment of the over 3 million citizens who live in U.S. territories. Our government is long overdue in rejecting this racist and discriminatory doctrine, and I'm proud to join my colleagues in this effort to end the DOJ's reliance on this odious case law,” said Congressman Jerrold Nadler, Ranking Member of the House Judiciary Committee.

Members of Congress were joined by representatives of Right to Democracy, the ACLU, and other civil rights and social justice organizations.

 “The Justice Department has the opportunity to make up for the racist arguments it presented to the Supreme Court in the early 1900s that laid the foundation for Insular Cases, calling people in island territories ‘savage and half-civilized’ and arguing they could be denied basic constitutional rights and self-determination,” said Adi Martínez-Román, Co-Director of Right to Democracy, which previously helped lead a letter calling on President Joe Biden to reject the Insular Cases. 

“We appreciate the recognition by so many in Congress, including leaders in the House and Senate Judiciary Committees, that it is time to turn the page on the Insular Cases and the racist doctrine of ‘separate and unequal’ status they created,” said Neil Weare, Co-Director of Right to Democracy, who has been litigating to overrule the Insular Cases for more than a decade. 

“The enduring influence of the Insular Cases underscores a troubling legacy steeped in racism. We urge the Department of Justice to publicly reject any continued reliance on them.  These antiquated precedents are foundational to the U.S.’s discriminatory and colonial relationship with the territories and subvert the ultimate goal of self-determination.  The DOJ’s disavowal of them would be a small but meaningful step towards helping redress this historical injustice,” said Alejandro A. Ortiz, Senior Counsel for the Racial Justice Program at ACLU, which sent a similar letter to the Justice Department in 2022 on behalf of a group of civil rights organizations.

“We applaud the members of Congress for calling on the Department of Justice to unequivocally condemn the insular cases. The systemic discrimination sustained by the Insular Cases belongs in our history books, instead they are being used as the basis for decision-making about Puerto Rico and other territories. We support Congress’ call to reject the Insular Cases to protect the constitutional and human rights of people in the territories,” said Frankie Miranda, President and CEO of Hispanic Federation, which has helped lead prior efforts to overrule the Insular Cases.

“We support the Congressional delegation’s call for the Justice Department to denounce the Insular Cases," said Lourdes M. Rosado, President and General Counsel of LatinoJustice PRLDEF which has led briefs calling on the Supreme Court to overrule the Insular Cases. “Our government is long overdue to fully reject the precedent these cases have set for more than a century, and how their racist, discriminatory language has influenced how Puerto Ricans and other residents of U.S. territories are treated as second-class citizens by multiple U.S. laws and policies. Moreover, we would welcome proposals to rectify the historical injustices they represent by eliminating policies that discriminate against residents of U.S. territories when it comes to public benefits and rights other U.S. citizens receive.”

In recent weeks, Virgin Islands Governor Albert Bryan, Jr., and Manuel Quilichini, President of the Colegio de Abogados y Abogadas de Puerto Rico (Puerto Rico Bar Association), have also sent letters to the Justice Department urging it to condemn the Insular Cases.

“Virgin Islanders deserve to enjoy the full range of civil and political rights afforded by the U.S. Constitution,” said Governor Bryan, who wrote the Justice Department last month in advance of the 107th Anniversary of the United States purchasing the U.S. Virgin Islands in 1917.

“The Justice Department has the opportunity to redress its historic and ongoing error by unequivocally rejecting the discriminatory and racist doctrine of territorial incorporation established by the Insular Cases,” said Mr. Quilichini, President of CAAPR, who wrote the Justice Department earlier this month. This followed a 2022 resolution by the American Bar Association and similar letters from the Virgin Islands Bar Association and New York State Bar Association to the Justice Department. 

In related news, the U.S. Civil Rights Commission will meet on Friday, April 19, 2024, at 10am ET, to hear reports from the Chairs of the U.S. Virgin Islands and Puerto Rico Advisory Committees that examine the Insular Cases and the impacts they have had on civil rights in U.S. territories. 

Video of Wednesday’s press conference on Capitol Hill is available here. Transcript is available here.