There is no way to know in advance whether the justices will take up a specific case. If they decline to do so here, they may be influenced by the arguments raised by the government of American Samoa itself, which opposed the plaintiffs’ effort to get the courts to extend birthright citizenship to the territories. “Their contrary view would threaten fa’a Samoa, upend well over a hundred years of settled law and practice, and deprive the American Samoan people of their basic right to determine their own status through the democratic process,” the government told the court in a reply brief, referring to their term for the traditional Samoan way of life.

“Finally, it bears noting that even if this Court were inclined to reconsider and overrule the Insular Cases, it would be remarkably ironic to take that step in a case where those decisions have been cited not to perpetuate racist or imperialist doctrines, but instead ‘to preserve the dignity and autonomy of the peoples of America’s overseas territories,’” they concluded, quoting from Sotomayor’s dissent in Vaello-Madero. The plaintiffs, as one might expect, strongly disputed that assertion. “Extending citizenship has not impaired cultural preservation or self-determination in any other U.S. territory, and there is no reason to suppose the result would be different in American Samoa,” they argued in a reply brief.

Even if the justices decline to take up the question in this specific case, it seems likely that they will inevitably be compelled to decide whether the Insular Cases should continue to apply in a postcolonial world. At issue, after all, is not just whether a justice or group of justices got it wrong more than a century ago when cases involving the new territories came before them. It is also about whether millions of Americans should still exist in that liminal constitutional space today, and whether it should continue to shape their lives and destinies going forward.