WASHINGTON — A group of mostly Democratic lawmakers is among those pushing the Justice Department again to condemn racist Supreme Court decisions from a century ago that shaped a legal landscape in which people living in U.S. territories are essentially treated as second-class citizens.
Civil rights groups and professional legal associations are also joining the effort to target the so-called Insular Cases, which began this week with a letter to Attorney General Merrick Garland.
Members of both the House of Representatives and the Senate will also hold a press conference on Wednesday to highlight the issue.
Among the 43 lawmakers who signed the new letter are Sen. Dick Durbin, D-Ill., chairman of the Senate Judiciary Committee, and Rep. Jerry Nadler, D-N.Y., the ranking member of the House Judiciary Committee.
“Today, the Department of Justice has an opportunity to right this historic wrong by unequivocally rejecting the discriminatory and racist territorial integration doctrine established by the Insular Cases.,” MPs wrote lettera copy of which was obtained by NBC News.
Two Republicans who serve as their territories’ representatives in Congress, James Moylan of Guam and Jennifer Gonzalez-Colon of Puerto Rico, also signed on. All other signatories are Democrats.
The Insular Cases were a series of decisions handed down shortly after the United States acquired Puerto Rico and other territories in the 1900s, and the court said that people in those jurisdictions did not have all the constitutional rights of those on the mainland.
In a 1901 case, Justice Henry Billings Brown referred to the territories as lands “inhabited by alien races” that did not adhere to “Anglo-Saxon principles.” Five years earlier, Brown authored the infamous Plessy v. Ferguson decision, which upheld racial discrimination.
In a separate opinion in the 1901 case, Justice Edward Douglass White said the United States had a right to “an unknown island of an uncivilized race” without giving it full constitutional protection. Several other decisions have advanced the theory that certain rights do not apply to people in the territories of others.
To date, the Supreme Court itself has not accepted requests to formally recuse itself from the Insular Cases. Only two of the nine justices, conservative Neil Gorsuch and liberal Sonia Sotomayor, expressed concern about the precedents remaining on the books.
In a 2022 opinion, Gorsuch proposed that the court hear a case where the Insular Cases could be reversed, saying they contain “ugly racial stereotypes” and that their flaws are “as fundamental as they are embarrassing.”
Later in 2022 the court refused A lawsuit over the rights of American Samoans would have allowed the justices to decide the issue.
Civil rights groups and some lawmakers have asked the Justice Department to drop its reliance on the cases. The Justice Department issued some statements that distanced themselves from the rulings, but did not outright reject them.
For example, in a filing last month, Justice Department attorneys wrote that the government agreed with critics that the reasoning and rhetorical aspects of the Insular Cases that invoked racist stereotypes were indefensible and repugnant.
Neil Weare, co-director of the advocacy group Right to Democracy, which targets the Insular Cases, said the Justice Department “continues to take steps in the right direction, but has fallen short of unequivocally condemning the Insular Cases.”
He added that the new letter will be followed by other actions, which may include new legal documents.
Rep. Raul Grijalva, D-Ariz., the ranking member of the Natural Resources Committee and who helped organize the letter, said in a statement that the Justice Department “must go further and unequivocally reject these racist decisions, as it does for other decisions.” Opinions based on racist stereotypes that the Supreme Court disregards the Constitution’s mandate of equality and respect for the rule of law.”
There is precedent for such a move, with the Justice Department in 2011 issuing a “confession of error” for its role in the 1944 Supreme Court decision in Korematsu v. United States, which upheld the internment of Japanese Americans during World War II. II.
In 2018, the Supreme Court formally overruled Korematsu, with Chief Justice John Roberts saying it was “serious error on the day it was decided.”
A Justice Department spokeswoman did not immediately comment on the new letter.
The United States has five territories: Puerto Rico, American Samoa, Guam, the Virgin Islands, and the Northern Mariana Islands. With about 3 million people, Puerto Rico is the largest by population.