Neil Gorsuch on Insular Cases

Justice Neil Gorsuch has taken a clear and forceful stance against the Supreme Court's Insular Cases, which established that the Constitution does not automatically apply in full to U.S. overseas territories like Puerto Rico and Guam. In a 2022 concurring opinion, he declared that these precedents "deserve no place in our law" because they lack foundation in the Constitution and were instead rooted in ugly racial stereotypes from the late nineteenth and early twentieth centuries. He aligns his criticism with the historical arguments made in strong dissents within the original cases, emphasizing that the federal government's power is strictly derived from the Constitution, which imposes limits even in the territories, contrary to the colonial framework the rulings created.

This position is consistent with Gorsuch's broader legal philosophy emphasizing textualism and original public meaning, which scholars note finds no support for the differential treatment of territories in the Constitution's text or early history. The judge made his argument explicit when dissenting from a denial of review in a case involving tribal lands, extending his critique of the underlying plenary power doctrine from the territories context to tribal affairs. While the practical immediate implications of overruling the cases are considered modest, Gorsuch's stance signals a desire to eliminate the second-class constitutional status of millions of U.S. citizens residing in these areas and bring coherence to constitutional law, a view also shared by Justice Sotomayor.