WASHINGTON — Judge Neil M. Gorsuch last month issued a 10-page concurring opinion that amounted to a plea. The Supreme Court, he wrote, must find a case that overturns a series of discredited early 1900 decisions based on racist assumptions and imperial ambitions.

The decisions, known as the Insular Cases, said some areas of the United States, such as Puerto Rico and Guam, are not entitled to all of the Constitution’s protections.

“The flaws in the Insular Cases are as fundamental as they are shameful,” Judge Gorsuch wrote, adding, “The Insular Cases have no constitutional basis and are instead based on racial stereotypes. They have no place in our law.”

The court, he wrote, should disregard those decisions in “an appropriate case.” He seemed to have one in mind. Last year, the United States Court of Appeals for the 10th Circuit, in Denver, relied on the Insular Cases to deny birthrights to people born in American Samoa.

Justice Gorsuch cited the decision, Fitisemanu v. United States, three times.

Last week, just six days after Judge Gorsuch gave his opinion, a petition arrived at the Supreme Court asking the judges to review that ruling. It asked the judges to decide “whether the Insular Cases should be overruled”.

The Insular Cases, issued between 1901 and 1922, said that so-called unincorporated areas had second-class status because, as a judge put it in 1901, they were “populated with an uncivilized race” that was “absolutely unfit to receive” the “immediate grant of citizenship.”

American Samoa, made up of islands in the South Pacific, became a territory of the United States in 1900. The inhabitants live in a kind of constitutional limbo.

A federal law says American Samoans are “nationals, but not citizens, of the United States at birth” who nevertheless owe “permanent allegiance to the United States.”

As the petition put it, “they are citizens of nowhere.”

If they move to other parts of the United States, they cannot vote in state or federal elections, serve on juries, or serve as officers in the armed forces. However, they can serve in the military, and American Samoans have enlisted at a remarkably high rate.

Three men born in American Samoa living in Utah filed a lawsuit to obtain citizenship, and Judge Clark Waddoups of the Utah Federal District Court ruled in their favor. He rejected the federal government’s argument that the Constitution does not require birthright citizenship for people born in unincorporated territories and that “any remedy here must come from Congress, not the federal judiciary.”

Judge Waddoups also ignored the views of the American Samoa government, which said citizenship should not be imposed above the wishes of many residents who fear it would jeopardize their traditional cultural and religious practices.

The judge ruled for the challengers instead, based on the 14th Amendment citizenship clause, which states that “all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States.”

A divided panel of three judges on the U.S. Court of Appeals for the 10th Circuit reversed Judge Waddoups’ decision, citing the Insular Cases.

Writing for the majority, Judge Carlos F. Lucero acknowledged that the cases have “become controversial” and “are being criticized as permitting further imperial expansion and based at least in part on racist ideology.”

But Judge Lucero concluded that “the Insular Cases provide the proper framework for the application of constitutional provisions to the unincorporated areas.” In that context, he wrote, the plaintiffs had no right to citizenship as a constitutional right at birth.

Congress is free to grant birthrights to American Samoa, as it does to people born in Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands. But the Constitution, he wrote, is silent on the matter.

Judge Lucero added that it may be possible to repurpose the Insular Cases “to preserve the dignity and autonomy of the peoples of the overseas territories of the Americas,” particularly by protecting indigenous culture and traditions.

But in his unanimous opinion last month, Judge Gorsuch was skeptical of what he called “a revisionist statement,” both in terms of logic and law.

“Attempts to repurpose the Insular Cases only disguise the worst of their logic in new clothes,” he wrote.

“Ultimately,” Judge Gorsuch wrote, “the Constitution’s limitations on federal power do not preclude a court’s uneducated assessment of local customs or contemporary trends in public opinion or academic theory in a territory.”

Justice Gorsuch is not alone in criticizing the Insular Cases. In a dissent over last month’s decision over the availability of some social security benefits in Puerto Rico, Judge Sonia Sotomayor wrote that the cases were “based on both odious and erroneous beliefs.” During a 2019 argument in a case arising out of the Puerto Rican debt crisis, Justice Stephen G. Breyer said the cases had cast a “dark cloud.”

The Supreme Court has developed what Judge Gorsuch called a temporary solution to avoid the worst implications of the Insular Cases, ruling that most constitutional rights are so fundamental that they must apply in all territories.

“That solution is not a solution,” he wrote. “It leaves the Insular Cases on the books.”

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