“I think it says something positive about American democracy that people are out here to see the Court and how it works,” said Ryan Lirette. Mr. Lirette is a recent graduate of Boston University School of Law. He is taking his law firm’s deferral year to work as a research associate at the American Enterprise Institute here in DC. Sixth in line, Lirette arrived before 6am to see Comstock.
Last week Mr. Lirette wrote an op/ed, crossposted at the National Review Online’s “Bench Memos” blog and AEI’s own blog, urging the Court to strike down the federal statute authorizing indefinite civil commitment of convicted sex offenders after their prison sentences have run. “The Court”, he wrote, “should take this opportunity to rebuke Congress’s gluttony by preventing it from meddling in areas that lawfully belong to the states.” Yet when I asked Mr. Lirette for his thoughts this morning, he left his partisan bona fides on the web in favor of a civic pride that all of us standing in the dark could agree upon.
Brandon Bartels, a political science professor at George Washington University, has made his career out of studying how the Court works. A judicial politics scholar, Professor Bartels just moved to DC in June and this was his “maiden voyage” to a Supreme Court oral argument. He came out for Comstock primarily because he wanted to “see a case where the United States was a party,” and believed that the Court would uphold the civil commitment law, in contrast to Mr. Lirette’s argument to the contrary.
Although Prof. Bartels, a young political scientist, calls the Court a “political institution,” he does not mean it in the rawest, most cynical sense promoted by other scholars of judicial politics. Instead, he frames the Court as an institution, rather than nine policy-driven judges, that is “forced to make decisions on political issues” by virtue of the political nature of some legal controversies. For example, “when a court strikes down a law as unconstitutional, [the decision] has clear policy implications,” whether or not judges sought to implement their own policy preferences.
Still, he maintained that on the day-to-day basis, the Court simply doesn’t “give a crap” about politics–at least since Justice O’Connor retired. For Prof. Bartels, this distance preserves the Court’s independence and grants it the institutional legitimacy to be the “final arbiter of what the law means,” even as the Court does follow “long waves,” or general trends, in public opinion over time.
Further down the line stood four forensic psychologists who belong to the American Psychology-Law Society. As opposed to Mr. Lirette and Prof. Bartels, who had more academic and theoretical interests in Comstock, these women came up from Richmond because the outcome of the case would impact their field. Civil commitments, they said, have become “huge” in their area and Comstock‘s “trickle-down effects,” however the case will be decided, will “make a difference” in their work.
Blair and Erin Miles, two years married and soon to move to Southern California, stood in front of the forensic psychologists. The Miles’s have assembled a DC “bucket list” before they abandon their winter parkas for summer sandals out West. Mr. Miles had been “DC born and raised,” but had “never been to a case” despite having lived in DC his whole life. Ms. Miles, who met her husband while they were in law school at University of the District of Columbia, had “tried once before [to get into an oral argument], but didn’t make it in.” This time, however, they arrived early enough to catch one more bitterly cold morning and their first oral argument. To make matters sweeter, Ms. Miles works at the National Center for Missing and Exploited Children, where she “does a lot of work with the Adam Walsh Act,” which contains the civil commitment law at issue in Comstock.
Of course, no morning line would be complete without the law students. Several, including Timothy Ziese, a Georgetown 2L who arrived with his out-of-town twin brother Jonathan to claim the third and fourth spots in line, had a zeal for constitutional law in general. Others, such as Allison Segal of Widener Law School in Delaware, came to see the oral argument after spending months on a law review article that contributed to her near-expert understanding of the issues at play in Comstock. Indeed, Ms. Segal went so far as to lay out her justice-by-justice predictions to conclude that Chief Justice Roberts would be the swing vote to affirm the 4th Circuit’s ruling the civil commitment statute unconstitutional.
In Comstock, a Congressional statute lay at the mercy of the Court. But those of us who witnessed night turn to day on First Street this morning saw the same sun rise over the Court and the Capitol. And so did it rise over us, whether right or wrong in our predictions, or right or left in our politics, as we stood united, waiting to watch American democracy in action.
The most interesting thing about this morning’s argument in Abbott v. Abbott is that it breaks down all the normal divisions on the court: left versus right, women versus men, pragmatists, internationalists, textualists, idealists … all of it flies out the big ornamental doors as the court grapples with this new problem of international child abduction at the grittiest, most practical level. It feels nice. Less an ideological smack down than a good, old-fashioned family argument. I wouldn’t get too used to it. But I enjoy it while I can.
Conservative principles of law-and-order and limited government clashed this morning in United States v. Comstock. At issue was the constitutionality of 18 U.S.C. § 4248, which provides for the federal government’s civil commitment of sex offenders after they have served out their full sentences in federal prisons.
On the one hand, section 4248 keeps off the streets convicted sex offenders deemed by federal authorities to be a continuing threat when they otherwise would be released back into the state where they committed their offense. This much seems wise: if a state is unwilling to exercise its police and public welfare powers by rehabilitating its violent sexual offenders upon their release from federal prisons, the federal government surely shouldn’t just let those deemed a continuing danger to society roam free among, well, society. This is the United States’ position in Comstock.
On the other hand, section 4248 relies on provisions of the constitution that may not authorize such federal action, however wise or well-intentioned. Specifically, Comstock argues that the Commerce Clause and the Necessary and Proper Clause of Article I, both relied upon by Congress in creating section 4248, do not cover civil commitment of criminals when the federal government’s power, through the prison sentence has been exhausted.
Solicitor General Elena Kagan rested her argument for the United States largely on the Necessary and Proper Clause, with barely a nod to the Commerce Clause. That much in itself was a victory for the late Chief Justice Rehnquist’s “federalism revolution,” which, to varying degrees of success, sought to limit the expansive reach of the Commerce Clause to issues more closely connected to interstate commerce than the permissive post-1937 Courts often allowed.
But only Justice Scalia truly seemed to believe that 4248 also strained the bounds of the Necessary and Proper Clause to maintain law and order. Justice Scalia looked to the text of the Necessary and Proper Clause, finding nowhere that it authorizes the federal government to act according to what is “necessary and proper for the good of society.” Rather, he maintained that the clause enabled the federal government’s actions that were necessary and proper to execute another power given to the federal government by the constitution itself. As such, he agreed with what would be the defendant’s argument that the states and states alone are responsible federal prisoners whose sentences have run.
Kagan countered that indefinite civil commitment of sexual offenders under 4248 was necessary and proper to the “responsible exercise of operating the criminal justice system.” On this point–that the federal government needed its own civil commitment regime as a “backstop” for when the state governments refused responsibility for released federal prisoners–Justices Alito and Breyer seemed sympathetic. They peppered G. Alan DuBois, a veteran federal public defender and counsel for Comstock, with hypotheticals about the constitutionality of the federal government’s ability to deal with prisoners who grows more violent while in prison or, in the opposite instance, is injured in jail in an attack by another prisoner as his sentence ends. Per these and several other hypotheticals, Alito and Breyer both seemed to believe that the federal government does have the power to retain custody over prisoners that it deems dangerous to public health and safety, or to themselves, upon their scheduled release from federal custody.
As Justice Breyer persisted in exploring the federal government’s power to set up, for example, national mental hospitals, Justice Scalia clutched his head in frustration: “No, No, No! The Issue is not setting up hospitals, it’s detaining and committing people!” Scalia simply could not believe that any governor or state attorney general, upon receiving a note or a call from the federal government, would deny his or her obligation to civilly commit a sexual offender and rather face the electoral consequences of letting such a criminal roam the state without rehabilitation. Justice Stevens then took the opportunity to look at the statute from the opposite end of Scalia’s looking glass, suggesting that the Court look to the wisdom of the statute and “assume there are cases out there that there is no solution” like Scalia’s belief that all states would naturally accept responsibility for rehabilitating federal prisoners released within their borders.
But DuBois stood firm against Stevens’, as well as Justice Ginsburg’s, apparent approval of the federal “backstop” when states refuse to cooperate. Chief Justice Roberts tested DuBois’s position, asking that “if a state says no” to receiving a released, but still dangerous, federal prisoner, “then the federal government says, ‘you have to’?” DuBois dug in: “Yes, the Constitution requires it.”
Scalia remained astonished that the other justices even entertained the federal government’s claims of responsibility. Noting that states have involuntary commitment procedures, he wondered why the federal government could not simply fund an office that brings state proceedings for involuntary commitment. “They should do that!” Dubois actually shouted in reply. When Stevens tried to get the Court back to assessing whether 4248 itself was constitutional, Scalia shot back that the statute “isn’t even necessary!”
Towards the end of the argument, Justice Sotomayor interjected with a compromise, asking DuBois if it would be constitutional for a judge to mandate civil commitment for a sexual offender during his trial’s sentencing phase. If such a mandate contained protections to avoid turning indefinite commitment into interminable detention, then it would be constitutional, replied DuBois.
Sotomayor’s trial-judge pragmatism may persuade all but Scalia (and possibly the ever-silent Justice Thomas) to side with public safety over rock-ribbed federalism and uphold 4248 as constitutional. If this happens, then Scalia, confronted with Sotomayor’s aggressive questioning this term and her possible coup over his Melendez-Diaz decision in yesterday’s Briscoe v. Virginia, may finally be meeting his match.
UPDATE: Read the official transcript here and use the comments section to call me out on my own transcription errors.
Back home now to defrost my toes and shed my hobo skin. A few thoughts before heading back to One First:
The quality of interviews from line this morning more than made up for my missing out at first in line by a single swipe at my snooze bar.
The line started building up around 5:30am. Economists, actors, political science professors, forensic psychologists, out-of-town tourists, and yes, more law students.
United States v. Comstock, which will be heard at 10am, was the biggest draw, although my usurper–one Shannon Salembier from Vermont Law School–snagged the official F1@1F title in order to see 11am’s Abbott v. Abbott. In contrast to yesterday, however, far fewer people in line today came “just because.” For details, come back tonight for my Vox Populi report.
Time to suit up. Rock!
5:22am and 2 more in line. Georgetown 2L and brother.
First is here to see Abbott v. Abbott. She’s cool, so I won’t sic international child abductors upon her. I’ll stick with second.