Democracy Now! analysis highlights ‘astonishing’ opinion by Justice Gorsuch
By John McPhaul
The liberal media outlet Democracy Now! on Wednesday analyzed the U.S. Supreme Court decision in the Vaello Madero Supplemental Security Income (SSI) case handed down last week, pointing out the overlooked concurring opinion written by conservative Justice Neil Gorsuch, which Democracy Now! commentator Juan González called “one of the clearest and most eloquent statements exposing U.S. colonialism that’s ever been issued by a Supreme Court justice, at least in my lifetime.”
“It could be the signal of the beginning of a long-overdue change in the court on this issue,” González said.
In his analysis, González examined the string of four Supreme Court rulings all going against Puerto Rico’s aspirations for sovereignty dating back to 2016.
In the latest case decided last week, the Vaello Madero case, the court in an 8-1 decision, with Puerto Rican Justice Sonia Sotomayor in dissent, found that Puerto Ricans do not have the right to collect SSI.
“All of these cases take for granted the power of Congress to do whatever it wants when it comes to Puerto Rico, and governed by the Territorial Clause of the Constitution as the court interpreted more than a hundred years ago in a series of cases known as the Insular Cases,” González said. “And this is the heart of the question here, the Insular Cases. There were cases like Downes v. Bidwell, DeLima v. Bidwell, Dorr v. United States, Gonzales v. Williams, Balzac v. Porto Rico, all in the early decades of the 20th century. Let’s be clear: The Insular Cases have been for a century the legal underpinnings of American colonialism. They provide legal justification for the United States to hold other nationalities and territory under its control.”
Gorsuch, González said, in his “astonishing” opinion, calls for the complete overthrow of the Insular Cases.
“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution,” Gorsuch wrote. “It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
“Now, justices don’t talk this clearly very often,” González said.
So, Gorsuch goes on to say in his opinion, “The flaws in the Insular Cases are as fundamental as they are shameful.”
“Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories,” he wrote. “Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees.”
The justice said that the Insular Cases are a product of a period of “ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding.”
Gorsuch, González said, noted that the only reason he voted in the majority in this case “was that no one asked him to overthrow the Insular Cases, not even the litigants on the other side.”
Gorsuch ends his opinion by saying, “But the time has come to recognize that the Insular Cases rest on a rotten foundation.”
“And I hope the day comes soon when the Court squarely overrules them,” the justice wrote. “We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less.”