Comment by timsally | Hacker News Reader

Comment by timsally | Hacker News Reader

Parent Full thread

There are a few things in this post that are widely off the mark, so much so that is actually unhinges the debate.

The first is that Alito is actually far better than Roberts on privacy rights [1]. Specifically, Alito supports a mosaic theory of the 4th amendment [2] that looks at "whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected". Alito is actually one of the best hopes for progressive 4th amendment jurisprudence, yet your characterization of him is exactly the opposite!

The second is that blind deference it is not the position of Scalia (though he certainly does support deference to the executive branch when such deference is allowed by law). He is an originalist [3] who faithfully executes that algorithm when he renders his decisions. Just because you don't agree with his point of view doesn't mean he's blindly backing national security agencies. In this situation, Scalia would tell you that what is being done is allowed by law and that Congress can stop it at any time through legislation, i.e. "garbage law in, garbage decision out". He thinks, quite sensibly sometimes, that it is the executive branch's job to deal with national security issues and such issues only become his concern when they violate the law. He is a very capable, if sometimes misguided, jurist.

As to the fact that SCOTUS does not know much about technology, this is an oft argued position that has been thoroughly debunked. Judges have to make rulings on a wide range of technical issues that they are not experts on. This has always been the case, it's not a "wildcard", and the courts are well equipped to handle it. They bring in experts and requests briefs on the necessary subjects. In the last 10 years the Court has ruled on genes, encryption, complex medical procedures, etc. It's impossible for the justices to be experts on all of these. The best we can do is require the justices to be experts on the law and provide them with support from subject matter experts.

[1] http://www.michiganlawreview.org/assets/pdfs/111/3/Kerr.pdf

[2] http://www.volokh.com/2012/01/23/whats-the-status-of-the-mos...

[3] http://nymag.com/news/features/antonin-scalia-2013-10/#print

EDITED to address some comments.

1-You may be right about Alito (I hadn't specifically looked at his fourth amendment thinking, I just went on the general vibe of the rulings in which he has participated in, most notably his majority ruling in Clapper v. Amnesty) http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf, in which case there is even more hope. I had quite forgotten his earlier thoughts at Princeton: http://online.wsj.com/news/articles/SB1000142412788732487950...

I have to admit Alito is the one justice I can't quite get a handle on.

In which case, flip Alito with Roberts, consign Scalia and Thomas to the non-hopes, and there you are.

2-I don't understand your critique, as this was exactly my point of stating: "a strongly written amicus brief in this situation by technology-savvy leaders could well tip the balance."

I think in this case Scalia strongly leans to that position. He himself said: “The consequence of that is that whether the NSA can do the stuff it’s been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” Scalia said.

That seems to indicate a certain degree of deferral to both legislative and executive branches in this matter.

As for garbage law in, garbage decision out, Scalia can't be counted on to rely on his own purported originalist thinking, lest we forget that the Voting Rights Act overwhelmingly re-approved by Congress had Section 4 knocked down by an opinion Scalia joined.

http://www.theatlanticwire.com/politics/2013/06/scalia-doma-...

I agree that Scalia's comments during oral arguments with respect to the Voting Rights Act were hypocritical and shameful.

I'm aware of the formula, the historical boundaries upon which they were set, and how section 4 could be updated beyond relying on preclearance for historically discriminatory districts. I do acknowledge that the formula is flawed and Congress could do a better job (especially in extending protections to areas not designated historically discriminatory that might be now). However, my specific point on bringing that up is that Scalia can't be counted on to hold to his own originalist views, so I emphasized his deferral to other branches of government instead as the sticking point, as well as his general dismissal of the right to privacy. Any combination of these factors make him pretty hopeless on this case, regardless.

I made a mistake blindly sticking Alito in there, without considering his views on privacy. However, he does have a very strong deference to executive power that would place him in that bucket of deferring to national security agencies (and indeed probably drove his majority opinion on Clapper v. Amnesty).

"One troubling memo concerns domestic wiretaps - a timely topic. In the memo, which he wrote as a lawyer in the Reagan Justice Department, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans."

http://www.nytimes.com/2005/12/24/opinion/24sat1.html

While I have this comment thread going, I'll clarify what I meant by wildcard. I never intended to note this being a special instance for the court, but rather I wanted to emphasize how this particular forum (a hub for technology leaders) can get involved in a deep policy issue like this, and have their views be well-respected. That doesn't happen that often. It was my call to action to this forum, rather than any particular critique of the court.

Reply on news.ycombinator.com