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University of Chicago Law Review

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781

Abstract

At the end of the Spanish-American War of 1898, America gained control of three new territories—Puerto Rico, Guam, and the Philippines. The political fate of these islands generated a bitter debate in the United States as many wondered how a country whose identity had been forged in the crucible of colonialism could, only a century after gaining its independence, administer an empire of its own. Despite the enormous political and public attention paid to the issue of American expansion, it was the Supreme Court—in a series of decisions collectively known as the Insular Cases—that interceded to settle the protracted political feud. What is most striking about this episode in constitutional history is that the Court's intervention brought closure to a volatile national debate implicating international affairs and foreign treaties—matters in which courts were expected not to meddle—without provoking significant public backlash or damaging the Court's institutional credibility. And the Insular Cases themselves have remained good law ever since. This Article seeks to understand why. Specifically, this piece aims to understand the process by which divisive, politically charged issues were transformed into questions fit for judicial review, how that process ratified the decisions themselves, and what role the political branches can play in validating otherwise questionable judicial action. It concludes first that there is considerable evidence, as a descriptive matter, that before the Supreme Court decided the Insular Cases, political actors took a series of steps that authorized and facilitated judicial consideration of questions that were political in nature. Second, the Article contends, as a normative matter, that the Insular Cases illustrate how the political branches can properly validate the Court's decisions by consenting in advance to the judiciary's involvement and certifying certain questions to the courts. Although the precise features of this process defy easy classification, it is possible to discern evidence of five elements that laid the groundwork for legitimate judicial review. By (1) disavowing their own authority to settle the dispute, (2) publicly inviting the Court to mediate the controversy, (3) endorsing the validity of judicial resolution, (4) casting the political issue in legal and constitutional terms, and (5) proposing nonlegal factors that could compensate for the absence of traditional standards, the popular branches helped transform arguably political questions into justiciable ones. It is this "consent and certify" process that at once explains and justifies the Supreme Court's intervention in the Insular Cases. More broadly, the Article suggests that the largely forgotten historical context of the Insular Cases reveals an important, unexplored potential source of judicial legitimacy: the political branches of government.

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