Category Archives: Courts

The Need for a Republican President

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The need is starkly illustrated by a couple of developments involving cases, the Supreme Court, and Justice Antonin Scalia’s death.

One development is this:

Dow Chemical Co had agreed to pay $835 million to settle a class-action case rather than risk an appeal without the conservative justice.

The other is this:

The state Rifle and Pistol Association decided against filing a petition asking the Supreme Court to hear the case fearing the conservative Scalia’s death will make winning the case virtually impossible.

[Rifle and Pistol Association President and National Rifle Association board member, Tom] King said his lawyers advised that going forward could damage the case because the High Court at the very least would likely deliver a split 4-4 decision that would leave the law in place.

This puts a very high premium on electing a Republican president, so we have a good chance of nominating and confirming a conservative judge to the Supreme Court.

Orenstein’s Ruling

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…on the Apple case in New York. The Wall Street Journal‘s Law Blog has some notes on Orenstein’s ruling.

In a discussion of why the 1994 Communications Assistance for Law Enforcement Act (which in the context of this discussion authorized things like pen registers in telecommunications companies’ landline telephone switching centers to be attached to specific telephone circuits in response to a search warrant) wasn’t applicable to the New York case, Orenstein wrote

The absence from that comprehensive scheme of any requirement that Apple provide the assistance sought here implies a legislative decision to prohibit the imposition of such a duty. Thus, even under the government’s reading of the [All Writs Act], I would conclude that while the matter is a close call, the Application seeks an order that is not “agreeable to the usages and principles of law.”

And (here as summarized by the Law Blog) in answering a hypothetical in which the President proposed a bill requiring [Apple] to submit to the government in similar cases and the Congress unanimously rejected it:

Under the government’s reading of the All Writs Act, he says, the Justice Department could still seek an order compelling Apple’s assistance “because Congress had merely rejected the bill—however emphatically, and however clear its reasons for doing so—rather than affirmatively passing legislation to prohibit the executive branch’s proposal.” He describes that reading of the All Writs Act as “absurd.”

“Absurd” understates the case. Here’s what the Constitution says about what the government is permitted [sic] to do:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

If it’s not a specifically named capacity of the government to do, it is expressly forbidden the government. Full stop.

Misusing the Judicial System

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Here’s another cynical decision to bypass the legislative branch of our republican government design, this time by DoJ. Given the behavior of the Obama administration, though, this attitude is unsurprising.

A Federal judge in a New York drug case has ruled that Apple cannot be forced by the government to help crack a cell phone held by prosecutors and claimed by those prosecutors to have critical, if encrypted, information.

The judge wrote, in part,

How best to balance those interests [between privacy and security] is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.

Indeed. That balance, where to draw the line, and how is a political decision, to be determined solely by us citizens through our elected representatives in Congress. Political decisions cannot be reached by judges; their role is strictly limited by our Constitution to determining the constitutionality of a law and if constitutional to applying it as written. Judges can not, may not, adjust a law to suit the government’s wishes.

Nevertheless, Justice will stay within the judicial system. A carefully unnamed (at least by the AP, whose article is at the link above) insisted on this:

We are disappointed in the Magistrate’s ruling and plan to ask the District Judge to review the matter in the coming days…. This phone may contain evidence that will assist us in an active criminal investigation and we will continue to use the judicial system in our attempt to obtain it.

We will continue to use the judicial system…. DoJ will continue deliberately to bypass Congress. DoJ will continue to seek to impose its own political will on us.

Criteria for Serving as Supreme Court Justice

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Here are President Barack Obama’s (D) criteria for his nominee to replace Justice Antonin Scalia.

…judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand….

So far, so good. But.

…a judge who knows that “justice is not about abstract legal theory, not some footnote in a dusty casebook.”

And

It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.

In other words, Obama still is looking to emphasize empathy over law. He wants the superior wisdom of the wise Latina. He wants the Constitution creatively interpreted and updated. He wants a Justice who agrees with Justice Ruth Bader Ginsburg that the Constitution is alterable because it lives through judicial rulings. He wants a Justice who agrees with Chief Justice John Roberts that enacted law is accessible to wholesale rewriting in order to arrive at something then worthy of application.

He does not want a Justice who recognizes that the Constitution lives through Article V and that Constitutional amendments and statutes and their changes are political rulings accessible only to We the People and our elected representatives.

He does not want a Justice who will adhere to his oath of office, which requires the Justice to defend and uphold the Constitution rather than to change it, an oath that also requires the Justice to understand and apply only the text of the Constitution and of enacted law, as they are written.

I agree with some, including Obama now, that the Senate has an obligation to consider his nominee(s), even in the last year of his term—a time frame Obama and his fellow Democrats have said should be exempt from Supreme Court nominee consideration. But the Senate has no obligation to rubberstamp Obama’s nominee, and any nominee who meets these criteria is unfit to serve as any sort of judge, much less a Supreme Court Justice.

Full stop.

Government Arrogance Should Disqualify It

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…in its case trying to force Apple to disable encryption on its iPhones.

Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this Court’s Order of February 16, 2016, Apple has responded by publicly repudiating that Order…Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation.

Never mind that under free American jurisprudence, Apple is allowed to appeal the lower court’s order to a higher court and to seek relief from complying—irreversibly, mind you—with the lower court’s order until Apple’s appeals are adjudicated. No: Apple disobeyed the high and mighty and must be punished for its impertinence.

Never mind that Apple is rightfully concerned with the sanctity of its customers’ privacy and with the ability of Americans generally to be free of the prying eyes of government. Apple disagrees with the awesome personages of FBI agents, and so it cannot possibly be behaving honestly.

DoJ’s lawyers are projecting their own failings.

Where Apple designed its software and that design interferes with the execution of search warrants, where it manufactured and sold a phone used by an ISIL-inspired terrorist, where it owns and licensed the software used to further the criminal enterprise, where it retains exclusive control over the source code necessary to modify and install the software, and where that very software now must be used to enable the search ordered by the warrant, compulsion of Apple is permissible under New York Telephone Co.

This is plainly, dishonestly specious. Apple designed its software and…manufactured and sold a phone used by…millions of American citizens, where it owns and licensed the software used to further the private affairs of American citizens…. It is plain from the careful construction of the government’s argument that it intends to expand it to pry into all of our private affairs whenever it takes a notion to.

…the Order will facilitate only the FBI’s efforts to search the phone; it does not require Apple to conduct the search or access any content on the phone. Nor is compliance with the Order a threat to other users of Apple products. Apple may maintain custody of the software, destroy it after its purpose under the Order has been served, refuse to disseminate it outside of Apple, and make clear to the world that it does not apply to other devices or users without lawful court orders….

This is deliberately disingenuous. No one is arguing that Apple is being required to conduct the government’s search. Of course, compliance with the order is a threat to other users of Apple products: the encryption, once broken or a way once found to bypass entry controls, is permanently and everywhere defeated. The FBI’s IT personnel know this. So do the government’s NSA personnel. Neither can Apple make clear to the world that it does not apply to other devices or users without those personnel making such statements being guilty of lying. Breaking an encryption algorithm or producing a way past its entry controls permanently and everywhere destroys the security of that algorithm. Without lawful court orders is just as disingenuous, as the second quote above demonstrates.

Apple is not above the law in that regard….

[M]arketing or general policy concerns are not legally cognizable objections to the Order…. This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company—complying with a lawful court order—could be obviated because that company prefers to market itself as providing privacy protections….

Neither is the government above the law, and these government lawyers know full well that Apple is engaging in purely legal, solely legal, behavior in appealing the court’s order. That this is inconvenient to the government’s lawyers is their problem. Furthermore, here is the government’s lawyers repeating their reprehensible, not to say unethical, claims that because Apple is so impertinent as to dispute with them, Apple cannot possibly be acting entirely honorably and entirely out of valid concerns for Americans’ privacy—especially when that privacy is at risk of so blatantly arrogant and overreaching a government as this one is presenting itself to be.

The government’s case should be dismissed in its entirety and with prejudice over this arrogance.