Judge Sheri Pym, a California district-court magistrate, has ordered Apple to come up with a new software bundle that can be loaded onto the phone and, in effect, take over the operating system and tell it to let the F.B.I. in. (Apple will have a chance to object to the order in court.) As an added point of convenience, this bundle is also supposed to let the agents enter passcodes electronically, rather than tapping them in, which is one of the many points on which the government seems to have moved from asking for compliance with a subpoena to demanding full-scale customer service.
.. If it can tell Apple, which has been accused of no wrongdoing, to sit down and write a custom operating system for it, what else could it do?
.. (The N.S.A. used, or rather promiscuously misused, another pen-register case from the same era to justify its bulk data collection.) It no longer becomes fanciful to wonder about what the F.B.I. might, for example, ask coders adept in whatever genetic-editing language emerges from the recent developments in CRISPR technology to do.
.. Could it require someone with distinct cultural or linguistic knowledge not only to give it information but to use that expertise to devise ways for it to infiltrate that community? Could an imam, for example, be asked not only to tell what he knows but to manufacture an informant?
A Tree Grows in Canada
The British North America Act, a law from 1867 that served as Canada’s constitution, provided for the appointment of “qualified persons” to the Senate. In the 1920s, with a growing feminist spirit abroad in the land, women had the temerity to assume that “qualified persons” might include them. When Emily Murphy, a leading feminist who was a judge in Alberta, sought an appointment, the prime minister turned her down on the ground that women were not “persons” within the meaning of the law.
.. Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well.
.. “You have to recognize that if the framers knew all the specifics of a just society, they would have written them down,” Justice Kennedy told Jess Bravin of The Wall Street Journal in an appearance earlier this month at the University of California’s Washington Center. The Constitution’s framers, the justice said, “used words that appeal over time to our sense of justice and our sense of freedom.”
.. And the Voting Rights Act decision, as Professor Johnsen goes on to point out, was likewise the opposite of originalist, rejecting the court’s longstanding deference to the role of Congress in enforcing the 15th Amendment’s guarantee of the right to vote.
Lessons for the Supreme Court from the Jedi Council
The stakes, everyone agrees, couldn’t be higher. If a single vote falls one way or another, as Senator Ted Cruz points out, decisions such as Heller v. D.C., and with it the reading of the Second Amendment—does it give private individuals a right to own a gun, or reserve that right only to members of a militia?—could be reversed.
Yet, if a textual interpretation can be so altered by a single vote as to mean exactly the opposite of what it had officially been thought to mean, then surely it seems less like a disinterested interpretation than like a passionately held opinion trying to pass as a disinterested interpretation. If four English professors, readers of “The Pickwick Papers,” held that Mr. Pickwick was meant to be the embodiment of intrinsic evil, and four others that he was the embodiment of bourgeois benevolence, we would not say that the solution was to add a ninth English professor. We would say that they were making incompatible readings of the same text because of strong and irreconcilable differences in values and beliefs and expectations.
.. that the Court is a purely political institution, and then that some of its members (the ones we agree with) are disinterested scholars pursuing a higher philosophy of law. The late Justice Scalia’s pretense was that “originalism,” a doctrine of tracking pure intention alone, could absolve judges from ideology—but, of course, as has been pointed out countless times, the original intentions he found almost always conformed precisely to the prejudices and passion of a right-wing Catholic Republican of the twenty-first century.
.. We don’t believe that intellectuals are mere interpreters. We haven’t for a long time. In a post-scientific age, we generally accept that reliable conclusions are made from evidence and experience, not from torturing old texts. Yet we can’t, emotionally, entirely accept this. We need authority for fear of anarchy. So we rely on the Constitution, or pretend to
Scalia Appointment as High Stakes as Clarence Thomas
The last nomination with the ideological stakes so high was in 1991, when Thurgood Marshall retired, by some measures the most liberal justice in modern history. He was replaced by Justice Clarence Thomas, the most conservative by those same measures, after a brutal confirmation process.
“The importance of the change in the court’s jurisprudence that is directly attributable to the choice of Clarence Thomas to fill the vacancy created by Thurgood’s retirement cannot be overstated,” Justice John Paul Stevens, who retired in 2010, wrote in a memoir published in 2011.