For first time in 10 years, Justice Clarence Thomas asks questions during an argument.

Interesting.

“Can you give me — this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”

I wonder if Scalia's absence played a role. No doubt, Thomas aligns closely with Scalia's judicial philosophy. Maybe Thomas was always happy to let Scalia take the lead in oral arguments. It will be interesting if Thomas starts asking questions more.

For the uninitiated, Thomas is legendary for his reputation for not asking questions during oral argument.

 

Friday Happy Hour Open Thread

Happy Friday, y'all. We made it.

Modern PGA Players Trying Out Vintage Clubs

Something fun.

If I were a golf club, I would be an antique.

Apple vs. the FBI - A Legal Analysis

The news has been buzzing over the last few days about the case of Apple defying the FBI's request to assist in unlocking the San Bernardio shooter's iPhone.

The background on this is pretty straightforward. The San Bernardino shooter's phone was lawfully discovered by FBI agents in connection with a valid search warrant. No one disputes that the FBI is allowed to access the information on the phone, not even Apple.

The problem is that the FBI doesn't have the password to the iPhone, and:

1. The phone might have a setting activated where it will erase its data after too many wrong entries;
2. The phone normally requires you to input the code via the touch pad (which is slow); and,
3. The phone imposes a waiting period between incorrect entries.

The FBI then went to Apple to ask the tech guys there to assist them with a workaround of the security system, so the FBI could very quickly (though electronic means) enter passwords at random, in a "brute force" method of systematically entering all possible passwords until the right one is found.

Apple said no, so the FBI went to court and obtained a court order requiring the private company to provide assistance to the FBI over their objection.

Initially, I was sort of skeptical that there was legal authority for a Court to compel a private person or company to somehow assist the government in law enforcement. My thought was that Apple isn't part of the FBI, and the FBI isn't entitled to commandeer or draft the tech guys working for Apple into the FBI's investigation. I was curious how a court arrived at this conclusion, as I felt pretty sure of myself that this seemed wrong. So, I did some research.

The first place I started was with the Court order itself. [PDF of full order] The first sentence contains the entirety of the legal basis for the rest of the order and by stating:

"This matter is before the Court pursuant to an application pursuant to the All Writs Act 28 U.S.C § 1651,...."

Okay. First of all, maybe using "pursuant" twice in one sentence isn't great writing, but that aside, my next thought was: What in the world is the All Writs Act?

Next stop, All Writs Act. Apparently, the All Writs Act isn't very long. Here's the whole thing:

28 USC § 1651 (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

Okay. So...it appears the "All Writs Act" is basically a statute that says federal courts are allowed to issue any order necessary to do what is necessary. Seems...vague, right? After a little more looking, I found a case where the US Supreme Court addressed the idea of a federal court using the All Writs Act as the basis to force a private company to assist law enforcement. United States v. New York Telephone Co., 434 U.S. 159 (1977). [Full case at the link]

Back in 1977 the prevailing technology was the telephone. Apparently, the FBI had probable cause to believe that there was some gambling going on at a certain location and that some telephones were used there for the purpose of furthering the gambling. They wanted to install some "pen registers" but needed the New York Telephone Company to help do it because any other way would tip off the bad guys. Problem was, the New York Telephone Company didn't want to get involved.

Sounds on point, right? The FBI is trying to investigate something and needs help from a reluctant third party. The Court ruled in favor of the FBI and created a three element test:

1. How far removed is the third party from the issue in question?

2. Does the third party have a substantial interest in not providing the assistance?

3. Is there any other way to achieve the government's goal without the third party?

For whatever it's worth to you, that was a 5-4 decision, so even the Supreme Court was divided on this one. Personally, I was somewhat more persuaded by the dissent, but maybe that's because I was looking to confirm my own inclination. In any event, it's the law.

So this situation isn't new. Anyone telling you that this dispute between Apple and the FBI is unprecedented is simply either uninformed or trying to con you. This situation has come up in the past, but nowadays we're just dealing with different kinds of locks and keys.

Accordingly, I don't think that Apple's position is as strong as I first did.

Looking at the three factors, I don't see how Apple can really prevail, in that they are closely associated with the iPhone, being the manufacturer and that they can deactivate these software features, and finally, Apple's objection is more ideological/theoretical than anything else. It's not like they have to publicly divulge some sort of trade secret.

Note, the FBI isn't asking for Apple to "let them in" to the phone or even all phones, they're just asking Apple in this one specific instance, to deactivate these settings for this one phone, so the FBI can conduct its lawful search.

I would be surprised if the FBI loses this legal argument.

Meanwhile, back in Syria, the Saudis want to hand the "Rebels" some anti-air missiles.

Because what could possibly go wrong?

Official Permanent Press Endorsement: Marco Rubio

Last week I wrote a piece arguing that the GOP race was realistically a two-man race between Trump and Cruz. Since then, a few events have taken place, and I've been having a change of heart.

Specifically, Rubio has received endorsements from Nikki Haley, Tim Scott, and Trey Gowdy. First of all, those are three Republicans whose credentials as "conservative" are beyond question. If you remember, Nikki Haley was originally elected as a Tea Party candidate back in 2010, and she's done a good job in her time as governor.

Tim Scott has also done a good job as Senator in his short time, and although he doesn't really have any big-ticket accomplishments as a Senator, it's sort of impossible in this day and age for a US Senator to really accomplish much on his own. For the most part, he's been an excellent messenger in articulating the conservative vision, and that's about as much as you can ask for.

Over in the House, Trey Gowdy has been a great advocate, bringing his well-honed prosecutorial acumen to committee hearings, and he has done a wonderful job of exposing the hypocrisy and fallacies underlying many of the positions that the current administration has taken over the years.

Accordingly, here is what I am dealing with: Haley, Scott, and Gowdy all share my views and vision. They've seen the GOP race just as I have, and they've faced the choice of who to support. They've decided to support Rubio instead of Cruz. (Obviously, I'm dismissing Trump.)

So their opinions mean something to me. I respect all three of these folks, and I have to now seriously consider: What do they see in Rubio and Cruz that I'm not seeing?

Maybe it's this: I'll admit that Cruz certainly isn't the "aspirational" candidate that Rubio is. Rubio is definitely the more likable guy, if that means anything, and I think it does. I know that some people are knocking Rubio because he's the "Establishment's Pick", and I get that he's got a weakness on amnesty. However, more than anything, I  want to have a Republican candidate who will be able to go into the general election and be able to try and bring together a coalition of voters who may self-identify as conservatives. I see Cruz as really struggling to do that. I think Cruz's tone and message turn a lot of people off.

It doesn't matter who the GOP nominates if the Democrats win. The Buckley Rule that you should support the rightwardmost viable candidate applies here. I'm trying to figure out who that is.

It's not Trump, because he's actually really left. So, I'm trying to figure out if Cruz or Rubio is more viable, because winning matters. Losing sucks, and I'm tired of it.

Rubio has the advantage of being able to better relate to people who are not conservatives, and he's not that far from Cruz in actual positions. Cruz is a principled conservative, but I'm not sure that he's the right messenger. Packaging matters, whether you like it or not, and he just doesn't have the right packaging.

You can see where I'm going with this. Based on everything I've seen and considered, Permanent Press is officially supporting Rubio for the GOP nomination.

I'm sure that I'll get criticism that I'm selling out to the Establishment, but at this point, I don't see where I can simply have a temper tantrum and vote to rebuke the GOP out of spite. I know a lot of people are saying that is their motivation, and I get that. However, I don't think that conservatives have that luxury in this instance.

Climate change models forgot to account for, get this, the ground absorbs water.

Despite the accelerated melting of glaciers and ice sheets, sea levels aren’t rising quite as quickly as scientists anticipated. The reason: Continents are absorbing more of the water before it flows into the seas, according to a new study.

Thirsty continents.

I think what the science is trying to tell is is that the rain in Spain stays mainly on the plain.

Scalia in three paragraphs.

Over the weekend, one of the best Supreme Court Justices of my lifetime passed away. Whether you disagreed with his jurisprudence or not, there was no avoiding the fact that he was a monumental figure on the Supreme Court. One of my favorite passages from his many, is his dissent in Planned Parenthood v. Casey, and it's especially relevant today.

"What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here--reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone.
Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v.Weisman, 505 U. S. ___ (1992); if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school--maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.
Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it, ante, at 22-23."

(emphasis mine)

Indeed.

Enjoy Your Weekend

A think piece on "gun violence".

Read the whole thing.

Those who decry “gun violence” very rarely use the word violence in any kind of rigorous way. That is unfortunate, because if someone tells you “X number of people died last year due to gun violence,” they are including some instances where an intended rape victim shot her attacker, or a policeman shot a meth-head who was trying to stab another officer. They don’t want a well-defined term, because the more deaths you can lump into the statistic, the scarier it sounds, and the greater the urge to “DO SOMETHING,” regardless of whether that something has any likelihood of achieving the stated goal.

No really. Go read it.

"If you want a gung-ho kind of day...."

Watch this.

(h/t: Brad's Bar and Grill.)

Cruz or Trump? You have to pick one.

Iowa is over. New Hampshire had its say. Now the world turns its lonely eyes to South Carolina.

Time for some real talk. Everyone has their preferred candidate. For some people, their preferred candidate may have dropped out the race. For most, their preferred candidate is lagging behind Donald Trump to some varying degree.

By the way, if you consider yourself to be a conservative and you support Donald Trump...well I don't know what to tell you other than you're being conned.

I know that there are a lot of Republican voters out there who don't view Cruz favorably. Likely, he wasn't your first choice when this whole dance started. He wasn't my first choice. Heck, he wasn't my second or third choice. But you go to war with the army that you have, not the army that you want.

For me, the priority is stopping Donald Trump. Full stop. He is not a conservative.

So, how do we go about achieving this objective? Simple. We nominate someone else. At this point, the field of alternatives is down to Cruz, Rubio, Kasich, and Bush. That's really it. And there's only one person of the four who can actually win.

Let's dispense with Kasich. He has no path to the nomination. He went all-in on New Hampshire, and he got second. Okay, good for him. He has no money and no organization here in SC, or anywhere else for that matter. He's not going to win.

Bush and Rubio are also stuck in a prisoner's dilemma of each taking establishment votes from the other. Also, factor in Kasich horning in on this voting bloc now, too. There just aren't enough regular, mainstream establishment Republicans to go around. Accordingly, each of these guys only gets a small piece of the pie. If there were only one mainstream guy, he would have a big number. But we have at least three.

So you have Cruz. Sure, he rubs some people the wrong way with his tone. He's going to have to address that. But he won Iowa, and he came in third in New Hampshire despite having not really spent that much time or money in the Granite State.

He's organized, and he has a ton of money. Sure, David Brook doesn't like him, but who cares? Guys like David Brooks are pretty much why you have so many people voting for Trump and Cruz.

I've thought about it very carefully, and I have to say that I think that Cruz is now the only candidate who can beat Trump. So you can pick one, South Carolina. Who's it going to be, Cruz or Trump?

Tuesday Afternoon Art Open Thread

A New York Blizzard - Childe Hassam, 1890

Could the Supreme Court target "Assault Weapons" next? I think it will.

Is this something that is common use for lawful purposes?

It looks like the issue of states enacting "assault weapons bans" just might be heading to the Supreme Court. When DC v. Heller was decided back in 2008, the Supreme Court held that the Second Amendment was a Constitutional right unconnected with a requirement that a citizen serve in the military. Basically, the Court confirmed that individual citizens are protected by the Second Amendment, which to me, seems obvious.

In any event, since the Supreme Court has ruled that the Second Amendment applies to everyone, the new fight is shaping up over what sort of firearms may be banned by states.

Back in December, the Court of Appeals for the Seventh Circuit held that a Chicago suburb could ban "assault weapons" which had been essentially defined as AR-15s and things that looked like AR-15s. The Seventh Circuit Court of Appeals is the appellate court for federal cases in Indiana, Illinois, and Wisconsin.

So here, we had one federal appellate court holding that the Second Amendment does not prohibit a ban on "assault weapons".

Just last week, an equal court - the Court of Appeals for the Fourth Circuit - held that Maryland's almost identical 2013 law prohibiting "assault weapons" violated the Second Amendment, finding that the prohibited firearms are in common use for lawful purposes, and are therefore protected by the Second Amendment. The Fourth Circuit Court of Appeals is the appellate court for federal cases in Maryland, West Virginia, Virginia, North Carolina, and South Carolina.

As you can see, we now have two equal courts in different areas of the country coming to opposing conclusions of law on the same topic. This is what is known as a "circuit split". For obvious reasons, the Supreme Court doesn't want federal law to be different in different areas of the country. A circuit split is one of the regular reasons that the Supreme Court will hear a particular case. It allows the Supreme Court to take the issue and set forth the single standard that will apply in all circuits.

And on something as hot-button as gun control, my guess is that the Supreme Court will likely take this case to do exactly that.

Finalizing an Appellate Brief - Open Thread

Working hard today, so I don't have much time to devote to the blog.

Use your time carefully.

It's Been Raining In Columbia Since October

Yeah, we've had a few days of sunshine here and there, but it really feels like we're in Forrest Gump's Vietnam.

I'm ready for the sun to come out. I just don't want Charlie to start shooting, though. Just some sun would be nice.

Some Iowa Delegates Awarded to Clinton By Coin Flip

No, I'm not using a metaphor of a coin flip to express how close the race between Clinton and Sanders was last night, I'm saying that Iowa delegates were literally awarded by coin flip.

Here’s what happened in Ames, according to David Schweingruber, an associate professor of sociology at Iowa State University (and Sanders supporter) who participated in the caucus:

A total of 484 eligible caucus attendees were initially recorded at the site. But when each candidate’s preference group was counted, Clinton had 240 supporters, Sanders had 179 and Martin O’Malley had five (causing him to be declared non-viable).

Those figures add up to just 424 participants, leaving 60 apparently missing. When those numbers were plugged into the formula that determines delegate allocations, Clinton received four delegates and Sanders received three — leaving one delegate unassigned.

Unable to account for that numerical discrepancy and the orphan delegate it produced, the Sanders campaign challenged the results and precinct leaders called a Democratic Party hot line set up to advise on such situations.

Party officials recommended they settle the dispute with a coin toss.

A Clinton supporter correctly called “heads” on a quarter flipped in the air, and Clinton received a fifth delegate.

Great. The fate of the republic is being decided by coin tosses. 

Greetings from Iowa! Home of the Confusing Voting System!

Well, tonight is the first night when votes are actually cast and counted. It feels like we've been leading up to this point for years now because...well...we have.

My political instincts are next to nothing, but with how complicated and tedious the caucus seems, I think that Trump's lack of organization is going to hurt him. I mean, what's the deal with all this standing up and publicly declaring for your candidate in a big gym, and then trying to convince other people to side with you?

If we've learned anything over the last several political cycles, people aren't big on changing their minds. Why can't the people of Iowa just do the regular voting thing? It's good enough for the rest of us.

In any event, for whatever it's worth, I'm going to predict that the methodical operation of Cruz actually works more than the flash of Trump, and Cruz wins the GOP side.

And just for fun, I'll predict that Sanders beats Hillary by two points.

What do you think?