Just thinking back in recent history, U.S. v. Jones (2012) [0], Scalia writing for the majority of the court [1]:
> The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
But additionally, he argues that without the physical intrusion, long term tracking via GPS may be permissible:
> The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. ... That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub-stantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation.
So at a clip, I'd go with my usual and say that Scalia had an independent mind that tried to balance a original reading of the Constitution with federal law. How he'd land on the Apple case is entirely unclear.
Scalia was hoping mad about the Obamacare decision that, among other things was an attempt by the state to force a citizen to buy a product. I won't rehash the arguments, they are well known, but the short answer is that Scalia would likely be opposed to forcing a company to build something. If the 'something' existed already, there might be a different argument to make considering that there isn't a 4th Amendment question (as the perpetrator is dead.) The idea of the state to compel an entity to build something (which is the same as forcing them to buy something as they must spend money buying the labor to build it,) would be, in Scalia's view, against the Constitution.
The plaintiffs would have to prove with substantial weight that there is a national security issue (i.e. An imminent threat.) That would be hard to prove as the government is really just investigating and fishing as opposed to having proof there's a nuclear launch code on the phone. I would suspect the 9th Circuit would rule in favor of Apple.. As such a 4-4 Supreme Court would by default result in the 9th Court decision standing.
I tend to agree with you. It is strange in the sense that the government is free to build such software itself, and subpoena Apple for such knowledge to do so, but instead is compelling Apple to act in a substantial way. For Scalia's reductio ad absurdum, could the govt use All Writs to force a safe maker out on the battlefield in Afghanistan to open a safe? If Apple had a working quantum computer, could they be compelled to use it to aid the govt? What's the limit on All Writs if this instance were upheld?
> The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
But additionally, he argues that without the physical intrusion, long term tracking via GPS may be permissible:
> The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. ... That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub-stantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation.
So at a clip, I'd go with my usual and say that Scalia had an independent mind that tried to balance a original reading of the Constitution with federal law. How he'd land on the Apple case is entirely unclear.
[0] https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) [1] https://www.law.cornell.edu/supremecourt/text/10-1259#writin...