The Vaello Madero lawsuit against federal discrimination in the territories was the case all patriots in Puerto Rico had been waiting to finally come along. Whether supporters of full equal rights of U.S. citizenship that come only through statehood, separation from the U.S. through sovereign nationhood, or continuation of anachronistic territorial status, this case was the metaphor for justice denied to Americans in Puerto Rico that distilled the essence of the island’s political status dilemma.
The Vaello Madero saga did not quite rival that of Americans from Puerto Rico fighting overseas but unable to vote for Commander-In-Chief when the absentee ballots were passed out to forward positioned troops. But the saga of Vaello Madero being sued by federal legal bureaucrats to recover Social Security disability benefits he had received after going back home from New York struck a chord of conscience in any fair-minded person.
Whether by narrow or broad measure, some form of relief from a seeming injustice was expected. That was not to be. Madero was an 8-1 ruling squarely upholding Insular Cases as applicable in the modern era. The fact is that Congress has the power to reverse the Insular Cases, which have been upheld by the courts on grounds that Congress must resolve the political status question, and the courts have defaulted to that conclusion for decades since institutionalized racism condoned by rulings of the federal courts when the Insular Cases were decided was declared unconstitutional.
The court in Vaello Madero is simply recognizing that the judicial branch can not determine the political question of what status the territories will have if the Insular Cases are reversed. Itself, the court does not have the power to admit territories to the union, unilaterally declare independence, or make territorial status permanent with judicially defined rights. That puts in perspective the statements by the justices in oral arguments in the most recent SCOTUS review of a territorial law case in FOMB v. Aurelius, in which we heard the Insular Cases described by one Justice as a “cloud” over territorial jurisprudence.
Motives don’t matter as much as outcomes
Some commentators find comfort from disappointment in the Vaello Madero ruling in Justice Gorsuch’s concurring opinion attack on the Insular Cases, and may see his narrative of indignation as predictive that the edifice of the Insular Cases is about to crumble. Still, an 8-1 ruling confirming the Insular Cases even more starkly than the 2016 Sanchez Valle case does not support that thesis.
Others have asked if there is the possibility conservative guilt and even white privileged virtue signaling are at play here. People in the territories ask if Gorsuch perhaps is dabbling in consequence-free race justice political triangulation, by touting disdain for imperialist doctrine applied in the era when the court openly practiced institutionalized racism, only to then vote to uphold vestiges of that colonial regime in modern rulings upholding the Insular Cases. Indeed, the race as Insular Cases motive is questionable when Justice Thurgood Marshall and Justice Ruth Bader Ginsburg voted to uphold the Insular Cases “unincorporated territory” doctrine.
One reason people wonder if Gorsuch is really prepared to address the status issue seriously is that Gorsuch conspicuously is mimicking verbatim a narrative of plaintiff counsel calling for reversal of Insular Cases in the Fitisemanu v. U.S. case. That federal lawsuit seeks court ordered application of 14th Amendment citizenship in unincorporated territories. That would change the political status of the territories in the modern era by judicial edict without democratic self-determination.