[tptacek]

I don't think the legislature helps you here, because one of the very first things the legislature did, when it was populated with the framers and signers of the Constitution, was to delegate to the courts the power to compel third parties to assist investigations.

[aniro]

And Apple is arguing that the "All Writs Act" to which you refer is not authority to demand whatever you damn well please, from anyone, at any time. They are arguing that there are well established limits to that authority and that the judiciary is overstepping its bounds here and need defer judgement to elected representatives (the legislature).

[tptacek]

I don't think this is accurate. To wit: I don't think Apple's argument is that the limits they're seeking are well established (they are not), only that they are important and sound.

Either way, Congress isn't a check on the Supreme Court. It's typically rather the other way around.

[aniro]

Application of the All Writs Act in this manner is unprecedented. The conditions under which it may be applied are well defined and are not met for this application.

The Supreme Court isn't a factor at this stage.

"Typically" you are correct. The formal method for checking the power of the Judiciary is for Congress to remove Judges from the bench.

Apple is arguing that All Writs doesn't grant the authority that is being used. If that authority is to be sought then it will have to come from Congress. At least one Judge agrees.

[tptacek]

That's the nature of the AWA; it's a catch-all. Every new technology or social institution that appears is going to create a new "unprecedented" use of the AWA. But the underlying principle of the AWA is so simple that it was one of the first things that came before Congress: the people are entitled to every person's evidence, and if a third party stands in the way of that, the courts have the right to compel their assistance.

[aniro]

And there are limits to the assistance the court may request.

Creation of new works is just such a limit.

If there is not a limit, then what the courts may compel as "assistance" becomes absurd.

This is the argument Apple is making and it is the foundation of the opinion of at least one Judge that has ruled against use of the AWA to compel the unlocking of a phone.