The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgiving

[Kepler]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Wikipedia has a nice list of judges (and others) who have been mentioned as candidates for Obama SCOTUS nominations. All of the names are linked and are listed with birthdays.

Ignoring anyone born before 1963 as an arbitrary cutoff in no way associated with me:

Sri Srinivasan (born 1967)
Patricia Ann Millett (born 1963)
Robert L. Wilkins (born 1963)
David Barron (born 1967)
Jane Louise Kelly (born 1964)
Jacqueline Nguyen (born 1965)
Paul J. Watford (born 1967)
Alison J. Nathan (born 1972)
Mariano-Florentino Cuéllar (born 1972)
Goodwin Liu (born 1970)
Kathryn Ruemmler (born 1971)
Neal Katyal (born 1970)
Kamala Harris (born 1964)
Lisa Madigan (born 1966)
Caitlin Halligan (born 1966)
Kannon Shanmugam (born 1972)
Nora Demleitner (born 1966)

 

[ScoobyDoo]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Everyone wants congress to change - EXCEPT FOR THEIR OWN REP AND SEN.

Nobody losing their job come November

I'd love to get rid of my representative. But, my two Senators are two of the best in the business.

 

[5mn_Major]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

whatya expect from a liberal....

What...to follow the Constitution?

 

[ericredaxe]

Everyone wants congress to change - EXCEPT FOR THEIR OWN REP AND SEN.

Nobody losing their job come November

Not entirely true. Here on the North Shore we fired out long term congressman. Change does happen when a good alternative is presented to the voters.

 

[FadeToBlack&Gold]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

whatya expect from a liberal....

Yeah, she was so liberal when she was the swing vote that put W. in office the first time.

 

[Handyman]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Yeah, ok, just watch.

When you are wrong about this one what will the excuse be?

 

[Handyman]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Between your obsession with Pat Robertson and partisan tripe like this, your taste in political pieces is on par with Kepler's taste in television.

Man that is just cold blooded...

Although does that mean Scalia = The Bachelor?

 

[dxmnkd316]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Handy, don't lie, you'd give Scalia your rose.

 

[Handyman]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

That depends who is left

 

[FreshFish]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Well, we now know for sure who will NOT be nominated...

In a newly unearthed 2012 interview on C-SPAN, Scalia revealed his preferred successor: Judge Frank Easterbrook, of the Chicago-based Seventh Circuit Court of Appeals.

“If I had to pick somebody to replace me on the Supreme Court, it would be Frank,” Scalia said.

 

[Kepler]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Well, we now know for sure who will NOT be nominated...

He's also 67.

I would think there'd be a million Scaliettes running around out there. The man pulled an (albeit crackpot) entire judicial philosophy out of his arse. He probably had a clone army.

 

[unofan]

He's also 67.

I would think there'd be a million Scaliettes running around out there. The man pulled an (albeit crackpot) entire judicial philosophy out of his arse. He probably had a clone army.

I just reread the violent video game opinion from 2011; there were definitely areas of law where Scalia has it right without a doubt. I'd forgotten that that was a case where he probably drafted a concurrence that became the majority, "stealing" it from Alito.

He absolutely got it right on the first and fourth amendments more often than not. Ironically, he sucked at the fifth amendment (he hated warrantless searches, but also despised Miranda). He also never got the fourteenth amendment, which is where most of the hatred comes from.

He may have been the highest profile justice, but he was never the most conservative. That goes to Thomas and Alito.

 

[Kepler]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

He may have been the highest profile justice, but he was never the most conservative. That goes to Thomas and Alito.

538 did a piece on just that. Also, there's nice data here.

 

[FreshFish]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

The man pulled an (albeit crackpot) entire judicial philosophy out of his arse..

I think you are confusing him with someone else. "Emanations and penumbras" was 1973. Scalia didn't join the Court until 1986.

 

[unofan]

I think you are confusing him with someone else. "Emanations and penumbras" was 1973. Scalia didn't join the Court until 1986.

Scalia's internal contradiction is that he is a strict constructionist with laws (to the exclusion of legislative intent), but he loves to divine the founders' intent when interpreting the constitution (often to the exclusion of the words actually used).

And his originalist interpretation has a major flaw that the founders themselves recognized, and was the reason the bill of rights wasn't included originally: that by specifically enumerating some rights, some future idiot would assume other rights weren't protected.

 

[FreshFish]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

This standoff between Apple and the US government is really interesting. The US had to use a law from the 1790s (!) to try to compel Apple to create a backdoor to breach iPhone security, and in this case I am solidly with Apple in their refusal to comply. Congress really should intervene here and clarify the legal situation with a 21st century interpretation and not rely on 18th century precedent that hardly seems to apply.

There is no way that the backdoor will only be used once, and if it is invented, you know the Russian and Chinese governments will have a copy pretty quickly, and the repression of their citizens by those totalitarian governments will just get worse.

There cannot possibly be anything on the San Bernadino shooter's phone that is worth that cost. There has to be another way.

If this case winds up at SCOTUS, it will be really interesting to see how it is resolved.



The courts have consistently ruled that phone companies, cell phone service providers, etc. must turn over data that is within their own possession. However, they are asking Apple to be an unwilling tool of the government to hack someone else's data. That is a step too far. If the government has a warrant, their agents can enter and search my home, but the government cannot compel my neighbor to search my home for them (unless the neighbor coincidentally is a government agent). They can offer to hire the neighbor as their agent on a one-off basis, but the neighbor can still say "no" to that offer. We don't even have a military draft now, and conscription is not currently the law of the land for military service nor any other kind of government service either. I sure hope the first court ruling is overturned on appeal.




Here is an interesting twist on the PPACA ruling: Roberts overturned PPACA as unconstitutional under the commerce clause as a "reach too far" (before he re-wrote the law to make it a voluntary tax rather than a forced compulsion); wouldn't it be something if that ruling were used (among others) as precedent to deny the government's demand as a "reach too far" in this case?

 

[LynahFan]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

I really, truly do not understand the slippery slope argument. Apple will create a piece of software on a standalone machine that interfaces with the phone data to decrypt it. Nobody can hack onto that computer to steal the decryption software, and Apple clearly does not want anyone else to get it. What's the problem?

 

[GrinCDXX]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

I really, truly do not understand the slippery slope argument. Apple will create a piece of software on a standalone machine that interfaces with the phone data to decrypt it. Nobody can hack onto that computer to steal the decryption software, and Apple clearly does not want anyone else to get it. What's the problem?

That's not quite right. Apple isn't being asked to decrypt the data, they're being asked to create a modified version of their OS that disables some protections that make it not feasible for the FBI to brute force the password themselves.

I think the slippery slope argument is more along the lines of once the government knows this approach works, they're just going to employ it whenever they feel like it.

 

[FreshFish]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

I really, truly do not understand the slippery slope argument. Apple will create a piece of software on a standalone machine that interfaces with the phone data to decrypt it. Nobody can hack onto that computer to steal the decryption software, and Apple clearly does not want anyone else to get it. What's the problem?

it has less to do with the specifics of this particular situation than the broader precedent. Never before has the federal government been granted the authority to conscript a private company to do its work for it. Even during our most difficult times, either it was voluntary (e.g., World War II), or it was shot down by the Court (e.g., Truman's attempt to have the government take over the steel industry in 1952, Youngstown Sheet & Tube Co. et al. v. Sawyer).

What part of "unreasonable search and seizure" is so hard to understand? It is a "seizure" of Apple's resources. There is no legal basis. If the government wants that power, Congress needs to pass a law to authorize said power, and even then it would be an interesting case.

If it were a state agency and not the federal government, the rules might be different, since states have regulatory rights denied to the federal government (shorthand: feds can only regulate activities while states can regulate people, or so I am told by those who supposedly know better than me). I don't know but I still would not like it at all, not one bit.

What next?

An automobile company is failing, and so the government seizes its resources, pre-empts the bankruptcy code and stiffs bondholders to benefit employees, and takes over all of its resources too? (oh, wait, never mind about that one. )

I read somewhere that Hank Greenberg challenged the federal seizure of AIG and the courts so far have let the case proceed. It has not been dismissed either. So there are several precedents here and as far as I know every one of them has been against the government to protect private property rights from government confiscation. I'm sure if there is one obscure case to the contrary unofun will jump in immediately to contradict me.

 

[LynahFan]

That's not quite right. Apple isn't being asked to decrypt the data, they're being asked to create a modified version of their OS that disables some protections that make it not feasible for the FBI to brute force the password themselves.

I think the slippery slope argument is more along the lines of once the government knows this approach works, they're just going to employ it whenever they feel like it.

This makes no sense to me (not a software guy). They're going to install a new OS on the shooter's phone? Without first breaking into the phone and wihout losing the data? Even if that were true, how would that affect a single other phone?

The government is not trying to force Apple to include a backdoor into every phone in perpetuity.