Cite as: 534 U. S. 407 (2002)
Scalia, J., dissenting
"are, by definition, suffering from a 'mental abnormality' or a 'personality disorder' that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement." 521 U. S., at 362-363.
III
Not content with holding that the SVPA cannot be applied as written because it does not require a separate "lack-of-control determination," ante, at 412, the Court also reopens a question closed by Hendricks: whether the SVPA also cannot be applied as written because it allows for the commitment of people who have mental illnesses other than volitional impairments. "Hendricks," the Court says, "had no occasion to consider" this question. Ante, at 415.
But how could the Court possibly have avoided it? The jury whose commitment we affirmed in Hendricks had not been asked to find a volitional impairment, but had been charged in the language of the statute, which quite clearly covers nonvolitional impairments. And the fact that it did so had not escaped our attention. To the contrary, our Hendricks opinion explicitly and repeatedly recognized that the SVPA reaches individuals with personality disorders, 521 U. S., at 352, 353, 357, 358, and quoted the Act's definition of mental abnormality (§ 59-29a02(b)), which makes plain that it embraces both emotional and volitional impairments, id., at 352. It is true that we repeatedly referred to Hendricks's "volitional" problems—because that was evidently the sort of mental abnormality that he had. But we nowhere accorded any legal significance to that fact—as we could not have done, since it was not a fact that the jury had been asked to determine. We held, without any qualification, "that the Kansas Sexually Violent Predator Act com-ports with [substantive] due process requirements," id., at 371, because its "precommitment requirement of a 'mental abnormality' or 'personality disorder' is consistent with the requirements of . . . other statutes that we have upheld in
421
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