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Did you see Robert Cringely's article where he comes to a very similar conclusion? Ironically, although he sees the same gambit, the two of you seem to be inte

by nkurz 11y ago

Did you see Robert Cringely's article where he comes to a very similar conclusion? Ironically, although he sees the same gambit, the two of you seem to be interpreting the situation completely opposite. If I'm reading you both right, you believe Scalia was the most likely to side with Apple, whereas he thinks Scalia was a sure vote for the FBI? What’s going on is Justice Antonin Scalia is dead. Had Justice Scalia not died unexpectedly a few days ago (notably before the Apple/FBI dustup) and had the FBI pursued the case with it landing finally in the Supreme Court, well the FBI would have probably won the case 5-4. Maybe not, but probably. With Justice Scalia dead and any possible replacement locked in a Republican-induced coma, the now eight-member Supreme Court has nominally four liberal and four conservative justices but at least 1.5 of those conservatives (Justice Kennedy and sometimes Chief Justice Roberts) have been known to turn moderate on certain decisions. This smaller court, which will apparently judge all cases for the next couple years, is likely to be more moderate than the Scalia Court ever was. So if you are a President who is a lawyer and former teacher of constitutional law and you’ve come over time to see that this idea of secret backdoors into encrypted devices is not really a good idea, but one that’s going to come up again and again pushed by nearly everyone from the other political party (and even a few from your own) wouldn’t right now be the best of all possible times to kinda-sorta fight this fight all the way to the Supreme Court and lose? If it doesn’t go all the way to the Supremes, there’s no chance to set a strong legal precedent and this issue will come back again and again and again. That’s what I am pretty sure is happening. http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-all-the-way-you-think-it-is/ http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-a...

ianamartin 11y ago
I did see that, and I think that Cringley is--like many other people who haven't paid attention--seriously misinterpreting Scalia's history on the court. My own, admittedly amateur, interpretation is that he's largely internally consistent with his ideas of protecting person freedoms and advocating in favor of judicial restraint. I see citizens united as an exanpsion of Scalia's attitude about protecting personal freedoms (and this is an expansion I disagree with, btw). His logic in Bergofell was that the court doesn't have the authority to meddle further in religious matters than it already has and needs to exercise restraint. In my opinion, the argument is stronger in Bergofell than it is in Citizens United, even though I agree with the result of the former and disagree with the latter. I could be incredibly wrong, but I think that over 30 years, Scalia has been a champion of individual rights and protections more often than not. Much to various people's chagrin at different times. That has sometimes led to good results and sometimes led to bad. I feel comfortable in this case making the assertion that Scalia would have definitively come down on the side of Apple, and done so in the heavy-handed manner that he was known for and probably persuaded a fence justice like Kennedy to side with him in this case. But possibly also bringing RBG in with him at the same time. Yes, it's all prognostication at this point, and I know that. But in my opinion, the bigger picture of Scalia outside of Citizens United and Obergefell are the history of someone who would have opposed the order against Apple. Cringley is just being Cringely: bigoted, hateful, and wrong. As usual. But then again, I could be really wrong. It does happen sometimes.
- rfreytag 11y ago
  How is Cringely bigoted or hateful? I'm genuinely curious as I just don't see it. He can wrong, but then he is known to admit that. Please, several conclusive examples would be surprising to me and interesting.
- Zafira 11y ago
  I am uncertain how one could consider Scalia's jurisprudence as advocating civil liberties.
  - briandear 11y ago
    Because he's a strict Constitutionalist. I would suggest a review of his actual written opinions. They are spectacularly in favor of a strict interpretation of the Constitution. His Obamacare dissent is a great recent example: the civil liberty to not be compelled to buy a product. Also look at Texas v Johnson, Maryland v. King, Kyllo v. United, Florida v Jardines. Scalia would almost certainly be on Apple's side in this because it represents not a question of legislation but a question of the power of the state. It's easy to dislike Scalia based on decisions not going the way one's personal convictions would hope, but in questions regarding the power of the state, Scalia is very clear. Remember Scalia defended flag burning as well as opposing thermal imaging into a private home without a warrant. He also opposed involuntary DNA submission -- definitely read the opinions and not simply examine the outcomes.
    - randominion 11y ago
      I love how people keep going back to him being a defender of state's rights, but conveniently forget about cases such as the Bush vs Gore recount, where he specifically took away the state's right to recount, with some disastrous consequences And there are other examples as well. People want/like to think of him as a defender of the Constitution. Great. But consistent, he never was.
  - barney54 11y ago
    Scalia's opinion in Heller is a good example helping to restore the 2nd Amendment as meaningful along with the 1st and 5th.
ghayes 11y ago
Just thinking back in recent history, U.S. v. Jones (2012) [0], Scalia writing for the majority of the court [1]: > The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. But additionally, he argues that without the physical intrusion, long term tracking via GPS may be permissible: > The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. ... That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub-stantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation. So at a clip, I'd go with my usual and say that Scalia had an independent mind that tried to balance a original reading of the Constitution with federal law. How he'd land on the Apple case is entirely unclear. [0] https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) [1] https://www.law.cornell.edu/supremecourt/text/10-1259#writing-10-1259_OPINION_3 https://www.law.cornell.edu/supremecourt/text/10-1259#writin...
- briandear 11y ago
  Scalia was hoping mad about the Obamacare decision that, among other things was an attempt by the state to force a citizen to buy a product. I won't rehash the arguments, they are well known, but the short answer is that Scalia would likely be opposed to forcing a company to build something. If the 'something' existed already, there might be a different argument to make considering that there isn't a 4th Amendment question (as the perpetrator is dead.) The idea of the state to compel an entity to build something (which is the same as forcing them to buy something as they must spend money buying the labor to build it,) would be, in Scalia's view, against the Constitution. The plaintiffs would have to prove with substantial weight that there is a national security issue (i.e. An imminent threat.) That would be hard to prove as the government is really just investigating and fishing as opposed to having proof there's a nuclear launch code on the phone. I would suspect the 9th Circuit would rule in favor of Apple.. As such a 4-4 Supreme Court would by default result in the 9th Court decision standing.

by nkurz 11y ago

ianamartin 11y ago

I did see that, and I think that Cringley is--like many other people who haven't paid attention--seriously misinterpreting Scalia's history on the court. My own, admittedly amateur, interpretation is that he's largely internally consistent with his ideas of protecting person freedoms and advocating in favor of judicial restraint. I see citizens united as an exanpsion of Scalia's attitude about protecting personal freedoms (and this is an expansion I disagree with, btw). His logic in Bergofell was that the court doesn't have the authority to meddle further in religious matters than it already has and needs to exercise restraint. In my opinion, the argument is stronger in Bergofell than it is in Citizens United, even though I agree with the result of the former and disagree with the latter. I could be incredibly wrong, but I think that over 30 years, Scalia has been a champion of individual rights and protections more often than not. Much to various people's chagrin at different times. That has sometimes led to good results and sometimes led to bad. I feel comfortable in this case making the assertion that Scalia would have definitively come down on the side of Apple, and done so in the heavy-handed manner that he was known for and probably persuaded a fence justice like Kennedy to side with him in this case. But possibly also bringing RBG in with him at the same time. Yes, it's all prognostication at this point, and I know that. But in my opinion, the bigger picture of Scalia outside of Citizens United and Obergefell are the history of someone who would have opposed the order against Apple. Cringley is just being Cringely: bigoted, hateful, and wrong. As usual. But then again, I could be really wrong. It does happen sometimes.

rfreytag 11y ago
How is Cringely bigoted or hateful? I'm genuinely curious as I just don't see it. He can wrong, but then he is known to admit that. Please, several conclusive examples would be surprising to me and interesting.
Zafira 11y ago
I am uncertain how one could consider Scalia's jurisprudence as advocating civil liberties.
- briandear 11y ago
  Because he's a strict Constitutionalist. I would suggest a review of his actual written opinions. They are spectacularly in favor of a strict interpretation of the Constitution. His Obamacare dissent is a great recent example: the civil liberty to not be compelled to buy a product. Also look at Texas v Johnson, Maryland v. King, Kyllo v. United, Florida v Jardines. Scalia would almost certainly be on Apple's side in this because it represents not a question of legislation but a question of the power of the state. It's easy to dislike Scalia based on decisions not going the way one's personal convictions would hope, but in questions regarding the power of the state, Scalia is very clear. Remember Scalia defended flag burning as well as opposing thermal imaging into a private home without a warrant. He also opposed involuntary DNA submission -- definitely read the opinions and not simply examine the outcomes.
  - randominion 11y ago
    I love how people keep going back to him being a defender of state's rights, but conveniently forget about cases such as the Bush vs Gore recount, where he specifically took away the state's right to recount, with some disastrous consequences And there are other examples as well. People want/like to think of him as a defender of the Constitution. Great. But consistent, he never was.
- barney54 11y ago
  Scalia's opinion in Heller is a good example helping to restore the 2nd Amendment as meaningful along with the 1st and 5th.

ghayes 11y ago

Just thinking back in recent history, U.S. v. Jones (2012) [0], Scalia writing for the majority of the court [1]: > The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. But additionally, he argues that without the physical intrusion, long term tracking via GPS may be permissible: > The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. ... That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub-stantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation. So at a clip, I'd go with my usual and say that Scalia had an independent mind that tried to balance a original reading of the Constitution with federal law. How he'd land on the Apple case is entirely unclear. [0] https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) [1] https://www.law.cornell.edu/supremecourt/text/10-1259#writing-10-1259_OPINION_3 https://www.law.cornell.edu/supremecourt/text/10-1259#writin...

briandear 11y ago
Scalia was hoping mad about the Obamacare decision that, among other things was an attempt by the state to force a citizen to buy a product. I won't rehash the arguments, they are well known, but the short answer is that Scalia would likely be opposed to forcing a company to build something. If the 'something' existed already, there might be a different argument to make considering that there isn't a 4th Amendment question (as the perpetrator is dead.) The idea of the state to compel an entity to build something (which is the same as forcing them to buy something as they must spend money buying the labor to build it,) would be, in Scalia's view, against the Constitution. The plaintiffs would have to prove with substantial weight that there is a national security issue (i.e. An imminent threat.) That would be hard to prove as the government is really just investigating and fishing as opposed to having proof there's a nuclear launch code on the phone. I would suspect the 9th Circuit would rule in favor of Apple.. As such a 4-4 Supreme Court would by default result in the 9th Court decision standing.