422
Scalia, J., dissenting
that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness," id., at 358.
The Court appears to argue that, because Hendricks involved a defendant who indeed had a volitional impairment (even though we made nothing of that fact), its narrowest holding covers only that application of the SVPA, and our statement that the SVPA in its entirety was constitutional can be ignored. See ante, at 414-415. This cannot be correct. The narrowest holding of Hendricks affirmed the constitutionality of commitment on the basis of the jury charge given in that case (to wit, the language of the SVPA); and since that charge did not require a finding of volitional impairment, neither does the Constitution.
I cannot resist observing that the distinctive status of volitional impairment which the Court mangles Hendricks to preserve would not even be worth preserving by more legitimate means. There is good reason why, as the Court accurately says, "when considering civil commitment . . . we [have not] ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments," ante, at 415. We have not done so because it makes no sense. It is obvious that a person may be able to exercise volition and yet be unfit to turn loose upon society. The man who has a will of steel, but who delusionally believes that every woman he meets is inviting crude sexual advances, is surely a dangerous sexual predator.
IV
I not only disagree with the Court's gutting of our holding in Hendricks; I also doubt the desirability, and indeed even the coherence, of the new constitutional test which (on the basis of no analysis except a misreading of Hendricks) it substitutes. Under our holding in Hendricks, a jury in an SVPA commitment case would be required to find, beyond a reasonable doubt, (1) that the person previously
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