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Apple, Originalism, and the All Writs Act
Originalism as a method of judicial interpretation is now irrelevant, some claimed after the passing of Justice Antonin Scalia. It never really worked and now it’s destined to fade away.
Tell that to federal magistrate judge James Orenstein in New York, who yesterday ruled for Apple in a case in which the feds had invoked the All Writs Act to demand the unlocking of the phone of suspected drug dealer Jun Feng (the case parallels the far higher-profile case of the San Bernardino killer’s iPhone).
The Act grants federal courts broad power to issue “necessary or appropriate” writs, which the government would like to interpret to include types of writ Congress has declined to authorize explicitly even after considering doing so. In Judge Orenstein’s reasoning, it matters very much what the All Writs Act was understood to mean at the time of its passage in 1789.
As evidence about the horrific mass murders in San Bernardino unfolded, and explanations about the killers’ motive devolved to the familiar statement, “we can’t rule out terrorism,” the rest of us shocked by this slaughter wondered why the authorities were so hesitant.
