When U.S. Supreme Court Justice Antonin Scalia died unexpectedly a not unforeseen partisan congressional battle erupted over whether the Senate should confirm President Obama’s eventual replacement nominee. Article II of the United States Constitution clearly requires that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the Supreme Court...,” thus, the political grandstanding in Washington and on the presidential campaign trail has been entertaining at best, but troubling and obstructionist at worst.
I’ve often disagreed with Justice Scalia’s decisions. From campaign finance to gay marriage, I think he reached conclusions that are inconsistent with our constitutional order. But when it came to privacy rights, government spying and new technology, Justice Scalia generally championed the fourth amendment right to privacy in a way that protects American citizens from government overreach. Despite his belief that we should interpret the constitution as it was understood at the time of its adoption – a so-called originalist – Justice Scalia often opined that fourth amendment privacy protections must apply to new technologies such as GPS devices and cell phones.
And this brings me to an order issued in a California Federal Court just a few days ago, requiring Apple to develop software that will allow law enforcement to access the alleged San Bernardino shooter’s iPhone. Based on a 1789 law called the All Writs Act, the Federal Court decision requires Apple to engineer a technological back-door into this iPhone. Civil liberties activists, social media companies and Apple itself have pushed back - arguing that the Court went too far by ordering Apple to create technology that could allow government access to virtually all private information on our cellphones.
And here’s how Justice Scalia’s passing may have real world implications for the litigation almost certain to follow between Apple and the Federal Government. The Supreme Court tends to hear only those cases that have national import, and there can be little doubt that the privacy rights and basic powers of government at stake in the Apple case fit that description. So, it’s entirely possible that this case will end up before the Supreme Court sooner rather than later.
The legal community, the general public and the Court itself often relied on Scalia’s hardline, pro-liberty interpretations of the constitution when it came to privacy and new technology. Without Scalia, only time will tell whether there will be a collision between the new court and the apple case that may result in significant changes to the privacy rights our constitution protects.
