US News's Erbe Suggests Justices Thomas, Scalia Soft on Sexual Predators

May 19th, 2010 3:24 PM

"In a 7-2 ruling [on Monday], 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," U.S. News & World Report contributor Bonnie Erbe noted in a May 18 Thomas Jefferson Street blog post.

The PBS "To the Contrary" host later snarked that:

[T]he 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.

Of course that's a patently unfair cheap shot and Erbe knows it. Thomas's dissent in U.S. v. Comstock (scroll to page 36 at this link)-- published to the Supreme Court's Web site on May 17 -- clocks in at a brief 23 pages, easily readable for a journalist, especially one who graduated cum laude from Georgetown Law in 1987.

In his dissent, Thomas explains his concern with how the law in question is not properly anchored in the Constitution's "necessary and proper" clause.

What's more, whereas liberals often gripe that the conservative wing on the Court is not committed to judicial restraint or the principle of stare decisis, Thomas's dissent complains about how the majority's ruling in Comstock drifts away from "nearly 200 years" of a "two-part test" laid down in McCulloch v. Maryland (1819) [emphasis mine]:

First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the [C]onstitution”—that is, the powers ex-pressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “mean s” (the federal law) and the “end” (the enumerated power or powers) it isdesigned to serve. Ibid. McCulloch accords Congress acertain amount of discretion in assessing means-end fit under this second inquiry. The means Congress selects will be deemed “necessary” if they are “appropriate” and “plainly adapted” to the exercise of an enumerated power, and “proper” if they are not otherwise “prohibited” by the Constitution and not “[in]consistent” with its “letter and spirit.” Ibid.

Critically, however, McCulloch underscores the linear relationship the Clause establishes between the two in-quiries: Unless the end itself is “legitimate,” the fit be-tween means and end is irrelevant. In other words, no matter how “necessary” or “proper” an Act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than “carrying into Execution” one or more of the Federal Government’s enumerated powers. Art. I, §8, cl. 18.

Far from opposing civil detention after criminal incarceration, elsewhere in his dissent, Thomas suggests that states that wish to civilly detain sexual predators are well within their constitutional bounds to do so:

This Court, moreover, consistently has recognized that the power to care for the mentally ill and, where necessary, the power “to protect the community from the dan-gerous tendencies of some” mentally ill persons, are among the numerous powers that remain with the States. Addington v. Texas, 441 U. S. 418, 426 (1979). As a consequence, we have held that States may “take measures to restrict the freedom of the dangerously mentally ill”—including those who are sexually dangerous—provided that such commitments satisfy due process and other constitutional requirements. Kansas v. Hendricks, 521U. S. 346, 363 (1997).

Thomas later added:

To be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victimpersonally and society generally. See, e.g., Kennedy v. Louisiana, 554 U. S. ___, ___, n. 2, (2008) (ALITO, J., dissenting) (slip op., at 9, n. 2, 22–23). But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it. 6 New York v. United States, 505 U. S. 144, 157 (1992) (“‘The question is not what power the Federal Government ought to havebut what powers in fact have been given by the people’” (quoting United States v. Butler, 297 U. S. 1, 63 (1936)).

Erbe has a right to disagree with Justices Thomas and Scalia, but as a journalist and someone with legal training, she has an obligation to her readers to not take cheap shots at justices trying to accurately interpret the Constitution.