By Bonnie Erbe, Thomas Jefferson Street blog
In a 7-2 ruling, the Supreme Court expanded Congressional powers just a mite, by allowing the federal government to keep sexual predators in prison beyond their terms if they are deemed too dangerous to be released. According to the New York Times:
The law allows the federal government to continue to detain prisoners who had engaged in sexually violent conduct, suffered from mental illness and would have difficulty controlling themselves. If the government is able to prove all of this to a judge by “clear and convincing” evidence—a heightened standard, but short of “beyond a reasonable doubt”—it may hold such prisoners until they are no longer dangerous or until a state government assumes responsibility for them.
What's interesting about this ruling is that the two dissenters were arguably the most conservative on a majority conservative court: Justices Antonin Scalia and Clarence Thomas. One would think that law and order conservatives would be more concerned about keeping sexual predators away from the public than about a very minor expansion of federal powers. Apparently not.
Solicitor general and Supreme Court nominee Elena Kagan also played an important role in this case, arguing for the U.S. government in favor of the expansion of powers and against criminal rights. According to the Wall Street Journal:
At arguments in January, Solicitor General Elena Kagan told the court that federal prison officials found about 15,000 inmates with histories of sexual violence or child molestation, but only 105 who were determined to have a mental illness making it "reasonably likely" they would commit such offenses again.
One of those prisoners was Graydon Comstock, who in November 2006, six days before completing a 37-month federal sentence for possession of child pornography, was certified as sexually dangerous and denied release. He and four other such prisoners sued, claiming that Congress assumed powers only states can exercise.
But Kagan's position is much more easily explained than Scalia's and Thomas' dissent. As Solicitor General it is her job to argue in support of the government's position, regardless of her personal position.