This morning I went to the oral argument at the Supreme Court for United States v. Comstock, a potentially important federalism case that we’ve blogged about here before. The issue in the case is whether Congress has the Article I power to set up a system of civil commitment for sex offenders after their federal prison terms are over. The argument transcript is now up here.
Just based on my recollections of the argument, I thought SG Kagan made a much broader Article I power argument at oral argument than was made in the Government’s brief. Indeed, her argument struck me as sort of shockingly broad: She argued that the Constitution gives the federal government the general power “to run a responsible criminal justice system,” and that anything Congress plausibly thought a part of running a “responsible criminal justice system” was within the scope of federal power. Justice Scalia would have none of it, as you might imagine, but I couldn’t tell if he had any other votes.
My guess from the argument is that the Court will uphold the statute on the narrower grounds offered by the Government’s brief. If I had to make a more specific guess on a vote and opinion assignments, I would guess that it ends up being 7-2, with Scalia and Thomas dissenting. And I’ll go out on a limb and say Chief Justice Roberts will assign the majority opinion to Alito or Kennedy. But these are obviously just guesses, which I’ll remind you of if I get it right but forget if I get it wrong.