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If You Think The Supreme Court Is Conservative, Think Again

While the White House continues to characterize the Supreme Court as right wing, two of this week’s decisions make clear that the current Roberts Court is moderate, not conservative, setting the stage for confirmation hearings this summer as the Supreme Court moves the law to the left, in the name of the Constitution.

On May 17, the Supreme Court upheld the federal civil-commitment statute in U.S. v. Comstock. Under the statute, if someone in federal prison is finishing their sentence and the government deems them “sexually dangerous,” and their state is unwilling to take custody of them, then the feds can keep them behind bars, possibly for the rest of their life.

The problem with Comstock is that the court upheld the statute as being authorized by the Necessary and Proper Clause. And the majority opinion, written by Justice Stephen Breyer for the court’s liberal bloc, was joined by Chief Justice John Roberts.

That’s very troubling, because the Necessary and Proper Clause is potentially the most dangerous clause in the Constitution; it can be read in a ridiculously broad fashion to empower the central government to do anything it wants.

The original understanding of the Necessary and Proper Clause, first explained in the 1819 decision McCulloch v. Maryland, is that Congress can pass laws that are “necessary and proper” to execute the specific powers delegated to it by the Constitution. Instead of a freestanding power, it only authorizes Congress doing whatever is necessarily implied to carry out the “enumerated powers” that the Constitution authorizes.

That’s because the federal government has no “police power,” which is the power that states have to make laws for public health, safety, welfare and morality. Although states have this general power, the feds do not.

Two justices wouldn’t go with the Comstock majority, even though they voted to uphold the civil-commitment statute. Justice Anthony Kennedy refused to join the majority opinion because it gave the federal government too much discretion to enact laws that are “rationally related” to specific powers given to Congress. Justice Samuel Alito was more conservative than that, saying he would only uphold this law because it, “is a discreet and narrow exercise of authority over a small class of persons” who are already in the federal prison system for crimes they had committed, rather than the general population.

But a conservative rejection of this exertion of federal power is found in the dissenting opinion, written by Justice Clarence Thomas and joined by Justice Antonin Scalia. Thomas wrote, “Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the states.”

Also on Monday, the Supreme Court handed down its decision in Graham v. Florida, holding that it’s unconstitutional to sentence someone under 18 to life in prison without parole if that person wasn’t convicted for homicide. By a 6-3 vote, the court struck down the life-in-prison sentence of a 16-year-old habitual felon.

Five justices signed on to the majority opinion, written by Kennedy, that life in prison categorically violates the Eighth Amendment prohibition on cruel and unusual punishments, and thus can never be allowed.

The sixth vote came from Chief Justice John Roberts, although he made it clear that he rejected the majority’s rule that life in prison can never be allowed for minors. He wrote instead that the facts of this particular case amounted to a rare exception that wouldn’t allow life in prison under the Supreme Court’s precedents that the Eighth Amendment requires punishments to be proportional, precedents that the defendant did not ask the Court to overrule.

Three justices, Scalia, Thomas and Alito, dissented.

Writing for himself and Scalia, Thomas observed that in this case the court has now claimed the power to declare how society’s moral standards should evolve. Thomas also noted that such moral judgments have previously only been declared by the court where the death penalty is concerned. The fact that the death penalty is a one-of-a-kind, irreversible punishment, has “served as the principal justification for the court’s willingness to reject democratic choices regarding the death penalty. Today’s decision eviscerates that distinction.”

Both Comstock and Graham are troubling because the Constitution is only as good as the Supreme Court that interprets it. Much of President Obama’s agenda is unconstitutional, but the strict limits that the Constitution puts on Congress and the president can only have force if the Court upholds those limits.

As Elena Kagan’s confirmation process begins, the White House is trying to portray the Supreme Court as some right-wing bastion that needs young, brilliant liberals like Kagan. The Comstock and Graham decisions demonstrate that the Court is hardly conservative.

As Thomas added in his Comstock dissent, “Regrettably, today’s opinion… comes perilously close to transforming the Necessary and Proper Clause into a basis for a federal police power that we always have rejected.” The court is upholding assertions of federal power that it has never allowed, and all of us should be concerned with this leftward shift in the law.

Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union and the coauthor of The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency.