At no other point in recent history have the so-called Insular Cases, and their enduring colonial legacy, elicited as intense a debate in Congress, the U.S. Department of Justice, the federal courts, and the territories as right now. Today, these early-twentieth-century cases—which notoriously established a continuing distinction between “incorporated” and “unincorporated” territories—face unprecedented hostility from policymakers, courts, and scholars. Grounded on white supremacist notions of the inferiority of inhabitants in U.S. territories, the Insular Cases finally appear indefensible to modern eyes.
But even if the Supreme Court ever reconsiders the Insular Cases, case law more than a century old will not easily fall away. The Court will still have to wrestle with stare decisis if a majority of the Court is willing to overrule the territorial incorporation doctrine. Arguments against territorial incorporation will need to grapple with the notion that “the respect accorded prior decisions increases, rather than decreases, with their antiquity . . . .” Further, experience shows that however ill-reasoned the Insular Cases may be, judicial reverence (or inertia) might be a powerful counterweight to their repeal.
This Article argues that this should not be the case. Whatever the Insular Cases’ continued validity, neither stare decisis nor their antiquity should protect them from abrogation. The Insular Cases—and specifically, the territorial incorporation doctrine that they stand for—meet every factor that the Supreme Court needs to overrule its own precedent.
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