424
Scalia, J., dissenting
is 42% unable to control his penchant for sexual violence")? Or a frequency ratio ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that he is unable to control his penchant for sexual violence 3 times out of 10")? Or merely an adverb ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that he is appreciably—or moderately, or substantially, or almost totally—unable to control his penchant for sexual violence")? None of these seems to me satisfactory.
But if it is indeed possible to "elaborate" upon the Court's novel test, surely the Court has an obligation to do so in the "specific circumstances" of the present case, so that the trial court will know what is expected of it on remand. It is irresponsible to leave the law in such a state of utter indeterminacy.
* * *
Today's holding would make bad law in any circumstances. In the circumstances under which it is pronounced, however, it both distorts our law and degrades our authority. The State of Kansas, unable to apply its legislature's sexual predator legislation as written because of the Kansas Supreme Court's erroneous view of the Federal Constitution, sought and received certiorari in Hendricks, and achieved a reversal, in an opinion holding that "the Kansas Sexually Violent Predator Act comports with [substantive] due process requirements," 521 U. S., at 371. The Kansas Supreme Court still did not like the law and prevented its operation, on substantive due process grounds, once again. The State of Kansas again sought certiorari, asking nothing more than reaffirmation of our 5-year-old opinion—only to be told that what we said then we now unsay. There is an obvious lesson here for state supreme courts that do not agree with our jurisprudence: ignoring it is worth a try.
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