New York State Bar Association Diversity Symposium Focuses on Damaging Legacy of U.S. Supreme Court’s Insular Cases

By David Howard King

April 2, 2022

New York State Bar Association Diversity Symposium Focuses on Damaging Legacy of U.S. Supreme Court’s Insular Cases


By David Howard King

The U.S. Supreme Court’s insular cases have left the citizens of U.S. territories such as Puerto Rico and the Virgin Islands without Social Security benefits and the right to vote for president.

Those rulings, and a case pending before the Supreme Court that could upend them, were the subject of a discussion held by the New York State Bar Association’s Committee on Diversity, Equity and Inclusion on Friday afternoon.

The crux of the program was a reading of selected arguments made before the Supreme Court in the United States v. Vaello-Madero. You can read the full Supreme Court oral arguments here.

The case hinges on whether the federal government was right to claw back Social Security benefits from Vaello-Madero when it discovered he had moved from New York City to Puerto Rico. Puerto Ricans are not eligible for Social Security benefits, and the government insists that because Congress sets rules for Puerto Rico under the Territories Clause, it does not have to provide the same benefits to its residents as it does other states. Puerto Ricans don’t pay the same taxes as other states and therefore shouldn’t receive the same benefits, the government argues.

In the insular cases, the Supreme Court found that the populations of the territories are “inhabited by alien races” that are intrinsically opposed to Anglo Saxon beliefs and government and therefore do not have to be treated the same as the residents of other territories had to that point.

The arguments against second-class citizenship were reenacted during the symposium by some of the most prestigious legal minds in New York and beyond,  and by CUNY Law students who took on the role of Supreme Court justices and the lawyers in the Vaello-Madero case.

Participants included New York Court of Appeals Judge Jenny Rivera; Justice Liz Beth Gonzalez, Appellate Division, First Department;  Justice Tanya R. Kennedy, Appellate Division, First Department; and NYSBA president T. Andrew Brown.

After the group read selected questions and arguments, former Virgin Islands Bar Association President Nesha Christian-Hendrickson presented a series of political cartoons that lampoon the double standards set by the insular cases.

Christian-Hendrickson said that the Virgin Islands is losing population to the mainland because citizens aren’t afforded the same benefits as those who live in the 50 states. “Why should it be harder to live at home?” asked Christian-Hendrickson. She said that territory status was never meant to be permanent.

The point was driven home earlier by Anthony Ciolli of the Supreme Court of the Virgin Islands. Using a series of maps dating from the first U.S. colonies, Ciolli demonstrated how the U.S. territory clause was initially used to settle territory disputes between states by allowing new governments to be developed while under the protection of Congress.

This continued as the U.S. expanded westward. Ciolli noted that territories had more rights than states. However, once the U.S. began taking on a more imperialist expansion scheme, taking over territories with already established governments and non-white, non-English speakers, the territory clause was used to disenfranchise the citizens of newly-acquired lands, he said.

Christian-Hendrickson pointed to the landmark Plessy v. Ferguson case that found that segregation violated the U.S. Constitution. “That ruling showed us that we can’t have the status that is the same but separate. When are we going to change that for territories?”


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