Today the US Supreme Court upheld a statute allowing federal commitment and indefinite continued incarceration, without a jury trial, of people deemed "sexually dangerous," upon completion of a prison term for a federal crime.
The theory, apparently, is that a federal power to order civil commitment for mental illness is "Necessary and Proper" to enforce the Commerce Clause. The law in question here only applies to prisoners, but I see nothing in the majority's reasoning that wouldn't equally support a federal power to commit anyone, regardless of whether or not they violated any laws.
The dissenters: Scalia and Thomas. From Thomas' dissent
It thus does not require a federal court to find any connection between the reasons supporting civil commitment and the enumerated power with which that person’s criminal conduct interfered. As a consequence, §4248 allows a court to civilly commit anindividual without finding that he was ever charged with or convicted of a federal crime involving sexual violence. §§4248(a), (d). That possibility is not merely hypothetical: The Government concedes that nearly 20% of individuals against whom §4248 proceedings have been brought fit this description.9
The majority: Breyer, Stevens, Roberts, Ginsburg, Sotomayor, Kennedy, Alito. One expected nothing better from Roberts, Kennedy, and Alito; but the "liberal" line from Breyer, Ginsburg, Stevens and Sotomayor is now clear: they'll let any injustice stand rather than admit that anything, anytime, anywhere might not fall under the beloved Commerce Clause.
And to top it all off: The person who proposed this theory, who argued it before the court, who brought a majority together, with her famously persuasive powers: none other than Elena Kagan.
Now that it's clear she's just an ordinary straight person, not deserving of any special protection, why don't we just bork her good and hard?