Bill Gates, constitutional scholar

In this interview Gates weighs in on the Apple/FBI dispute.  He carefully crafts his argument about information, making the request sound like a subpoena, rather than a writ.

"This is a specific case where the government is asking for access to information. They are not asking for some general thing, they are asking for a particular case," Gates said.

"It is no different than [the question of] should anybody ever have been able to tell the phone company to get information, should anybody be able to get at bank records. Let’s say the bank had tied a ribbon round the disk drive and said 'don’t make me cut this ribbon because you’ll make me cut it many times.'"

Then why did the FBI use the writ and not the subpoena?  The FBI could have requested a closed hearing, called Timmy to the stand and asked him what is the exact method needed to unlock the phone. That lets the cat out of the bag, the FBI then has the keys.  But a writ is a compulsion for Timmy to perform some action, unlock that particular phone.  You can't have one without the other.

Ask yourself this.  Congress had already rejected the concept of a backdoor.  Thus, Timmy is off the hook, he was not involved in the case, and operated within the law.  If Congress were to issue a writ demanding Timmy's action, the Court would rule hat this is a penalty after the fact, Congress cannot do it.  Hence, the Judicial Act delegated a congressional power that never existed.

Our Supreme Court is stuck, since most of them  just make shit up without any constitutional guidance.