Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

51 Pages Posted: 16 Feb 2023 Last revised: 21 Feb 2023

See all articles by Adriel Cepeda Derieux

Adriel Cepeda Derieux

Columbia Law School

Rafael Cox Alomar

University of the District of Columbia’s David A. Clarke School of Law in Washington D.C.

Date Written: 2022

Abstract

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 . . . .”1 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.

Suggested Citation

Cepeda Derieux, Adriel and Cox Alomar, Rafael, Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases ( 2022). Columbia Human Rights Law Review, Vol. 53, No. 3, 2022, Available at SSRN: https://ssrn.com/abstract=4358996 or http://dx.doi.org/10.2139/ssrn.4358996

Adriel Cepeda Derieux

Columbia Law School

Rafael Cox Alomar (Contact Author)

University of the District of Columbia’s David A. Clarke School of Law in Washington D.C. ( email )

4200 Connecticut Ave. NW
Washington, DC 20003
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
46
Abstract Views
234
PlumX Metrics