Bench Memos

This Day in Liberal Judicial Activism—April 9

2001—A Ninth Circuit panel, in an opinion by Stephen Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments. The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public. The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent). The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive. In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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