Latest / Bloomberg Law / Weekend Law: The Chief's Warning, SCOTUS Pressured & Anthropic

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Weekend Law: The Chief's Warning, SCOTUS Pressured & Anthropic · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
0:08
Speaker 2: With violent threats against federal judges rising, the Chief Justice
0:13
Speaker 2: of the United States issued a warning this week.
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Speaker 3: Judges around the country worked very hard to get it right,
0:22
Speaker 3: and if they don't, their opinions are subject to criticism.
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Speaker 3: But personally directed hostility is dangerous and it's got to stop.
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Speaker 2: It was Chief Justice John roberts first response to President
0:40
Speaker 2: Trump's extraordinary verbal attacks on the justices who voted to
0:45
Speaker 2: strike down his global tariffs a month ago. Trump called
0:48
Speaker 2: them fools, lapdogs, unpatriotic, and disloyal to the Constitution. And
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Speaker 2: there's also the continued rhetoric from the administration calling out
1:00
Speaker 2: is by name and sometimes ridiculing them.
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Speaker 3: The problem sometimes is that the criticism can move from
1:08
Speaker 3: a focus on legal analysis to personalities, and you see
1:16
Speaker 3: from all over, i mean, not just any one political
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Speaker 3: perspective on it, that it's more directed in a personal way,
1:25
Speaker 3: and that frankly, can be actually quite dangerous.
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Speaker 2: It's not the first time the Chief has felt the
1:32
Speaker 2: need to come to the defense of federal judges. My guests,
1:37
Speaker 2: retired federal judge Johnny Jones third, he's the president of
1:42
Speaker 2: Dickinson College, Judge Jones, what's your take on the Chief
1:46
Speaker 2: Justice's warning.
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Speaker 4: Yeah, this is a big statement from the Chief And
1:51
Speaker 4: I absolutely respect the Chief Justice. I think that he's
1:54
Speaker 4: been a terrific leader of the federal courts. Agree or
1:58
Speaker 4: disagree with his decisions. Became Chief Justice when I was
2:01
Speaker 4: on the bench. You know, he's stood up historically for
2:04
Speaker 4: his judges. But for him to go this far means
2:07
Speaker 4: to me that he appreciates that this has reached critical mass.
2:11
Speaker 4: I was privileged to be on sixty Minutes a couple
2:14
Speaker 4: of weeks ago and a spot on threats against the judiciary,
2:18
Speaker 4: and I said very straightforwardly that we're going to get
2:20
Speaker 4: a judge killed if we're not careful. And I think
2:23
Speaker 4: this is resonating now with the Supreme Court. And while
2:27
Speaker 4: I know that the Chief was being cautious, although his
2:32
Speaker 4: statements were pretty strong, pretty profound, that it has to stop. Look,
2:37
Speaker 4: there's only one set of offenders right now. You could
2:41
Speaker 4: go back and talk about Chuck Schumer, and you can
2:44
Speaker 4: talk about other people who made comments about decisions by
2:47
Speaker 4: Republican appointed judges, but they're completely different in their nature
2:53
Speaker 4: than the constant drumbeat from this administration literally from January
2:58
Speaker 4: twentieth of last year year. And you know, I think
3:02
Speaker 4: the president's rhetoric, the Attorney General's rhetoric, Todd Blanche for example,
3:05
Speaker 4: saying there's a war in the judiciary. I think this
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Speaker 4: is this is really really beyond the pale. And you know,
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Speaker 4: we're seeing judges docks, We're seeing judges having pizzas delivered
3:15
Speaker 4: to them anonymously, and somebody's going to take up arms
3:19
Speaker 4: and they're going to do harm to a judge or
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Speaker 4: a judge's family. And I think the chiefs had enough
3:25
Speaker 4: of it, and that's why he picked a spot at
3:28
Speaker 4: Rice University and decided to speak out. Good for him.
3:31
Speaker 2: Do you have any confidence that this is going to
3:34
Speaker 2: get the president or those in his administration to tame
3:38
Speaker 2: their remarks.
3:39
Speaker 4: Well, it won't stop, June. But I'll tell you what's happening.
3:42
Speaker 4: You know, you're seeing for the first time now that
3:45
Speaker 4: grand juries are not indicting people. They're issuing no bills
3:49
Speaker 4: in cases. So this president would want to, I think,
3:53
Speaker 4: use the apparatus of the criminal justice system of the
3:56
Speaker 4: Justice Department to you know, bring punitive actions against his
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Speaker 4: end enemies. And what he's done is I think he's
4:03
Speaker 4: poisoned the well and good citizens who are called to
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Speaker 4: serve on grand juries are not buying it. And judges too,
4:09
Speaker 4: Judge Bozburg, for example, you know, who quashed a subpoena
4:12
Speaker 4: almost never happens in the case of Jerome Powell. So
4:15
Speaker 4: judges and grand jurors are wise to the ways of
4:19
Speaker 4: this administration. I mean, these sort of consequences of this
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Speaker 4: are expanding. For example, you know, the duty of candrid
4:26
Speaker 4: to the court is observed in the breach I think
4:29
Speaker 4: by government attorneys daily. They have utterly lost their credibility
4:33
Speaker 4: with the federal judiciary. You know, judges simply don't believe
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Speaker 4: what lawyers are saying to them. And that's really sad
4:39
Speaker 4: because you know, I learned over my almost twenty years
4:42
Speaker 4: in the bench that the Justice Department was extremely professional
4:46
Speaker 4: and reliable, and you know, you typically could take them
4:49
Speaker 4: at their word. That has been eviscerated by this administration.
4:52
Speaker 4: So while I don't expect them to stop, they're reaping
4:55
Speaker 4: what they're sewing. And you know, I've never seen so
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Speaker 4: many no bills issued from Grand jurius. It's remarkable.
5:03
Speaker 2: Judge Let's turn out to a different topic, a very
5:06
Speaker 2: different topic that's gotten a lot of attention. This past week.
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Speaker 2: For the first time, twenty seven Appellate Court judges on
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Speaker 2: the Ninth Circuit issued a harsh rebuke to one of
5:17
Speaker 2: their colleagues for the crude language he used in a
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Speaker 2: dissenting opinion. The full court had decided not to review
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Speaker 2: on bank a three judge panels ruling against a Christian
5:30
Speaker 2: known SPA that wanted to exclude transgender women on free
5:35
Speaker 2: speech grounds, and judges from across the ideological spectrum condemned
5:41
Speaker 2: Judge Lawrence Van Dyke for his use of vulgar language
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Speaker 2: to describe transgender women in his descent. They said, the
5:49
Speaker 2: language used by Van Dyke, a Trump appoint d, makes
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Speaker 2: us sound like juveniles, not judges, and it undermines public
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Speaker 2: trust in the courts. What did you do you think
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Speaker 2: about his descent?
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Speaker 4: Well, I've never quite read a judicial opinion like what
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Speaker 4: Judge Van Dyke rendered, and you know, at the end
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Speaker 4: of the day, I think it's unfortunate and it's inappropriately word.
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Speaker 4: Did I agree with his colleague who opined that were
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Speaker 4: better than this? It's way too sensational, It's way too cavalier.
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Speaker 4: And you know, the other appellation that he used in
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Speaker 4: the opinion is referring to his colleagues as woke, and
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Speaker 4: it's just wholly intemperate, and I think it portends that
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Speaker 4: he's going to have a very difficult working relationship if
6:39
Speaker 4: he didn't already with his colleagues on the circuit.
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Speaker 2: Have you ever heard of a rebuke like that from
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Speaker 2: colleagues on the bench?
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Speaker 4: No, I haven't, and I've read, you know, some really
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Speaker 4: vigorous descents. Justice Scalia could really sharpen his pen in
6:54
Speaker 4: his dessense. They were kind of entertaining, in part because
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Speaker 4: he didn't do it with particularly animus. There was one
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Speaker 4: time in history that I've read about where he and
7:06
Speaker 4: Justice Kennedy clashed and they both regretted it, but the
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Speaker 4: rhetoric wasn't anything close to what you see in this rendering.
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Speaker 4: You know, appell at courts like the Ninth Circuit have
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Speaker 4: to work together and they may have widely disparate views.
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Speaker 4: But the interesting thing about courts is that while people
7:25
Speaker 4: come from all stripes, and I had a very diverse
7:27
Speaker 4: court in the Middle District of Pennsylvania, the District Court.
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Speaker 4: You know, you tend to check your sort of sensational
7:34
Speaker 4: activities and attitudes at the door and really work to
7:37
Speaker 4: get along with your colleagues for the good of the
7:40
Speaker 4: third branch. And this kind of I can only characterize
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Speaker 4: it as grandstanding, I think really casts Judge Van Dyke
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Speaker 4: in an unfortunately bad light. And this is not his
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Speaker 4: first rodeo. As they say, you know, having a dissent
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Speaker 4: by video is I would also say, probably too cute
7:57
Speaker 4: by half.
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Speaker 2: Yeah, he recorded teen minute video in his judicial robes
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Speaker 2: handling several firearms as part of a descent from a
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Speaker 2: Ninth Circuit decision that upheld a California gun control law.
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Speaker 2: Sometimes when judges write these opinions with shock elements, they're
8:15
Speaker 2: referred to as auditions for the Supreme Court. Judges trying
8:20
Speaker 2: to get the attention of President Trump in order to
8:24
Speaker 2: get nominated to the Court.
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Speaker 4: You know, I guess that you could say that he's
8:29
Speaker 4: auditioning for something I don't know what, And I think
8:32
Speaker 4: that he's going to have a hard time if his
8:36
Speaker 4: quest is, you know, to be taken seriously as a
8:39
Speaker 4: Supreme Court nominee. He's getting an F grade in that.
8:42
Speaker 4: I don't think it's going to work for him. This
8:45
Speaker 4: is the kind of stuff that would really get you
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Speaker 4: beaten up, perhaps in a bipartisan way in a Senate confirmation.
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Speaker 4: So good luck to him, But he doesn't look like
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Speaker 4: a Supreme Court nominee to me in any way, shape
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Speaker 4: or form.
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Speaker 2: Do you agree with the judges who said that this
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Speaker 2: undermine public trust in the courts.
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Speaker 4: It depends how widely disseminated the opinion is. To be
9:05
Speaker 4: perfectly honest, but it could get viral. I guess it's
9:07
Speaker 4: certainly been written about in a number of different places.
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Speaker 4: I don't know that the general public reads these things.
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Speaker 4: But you know, at a time when I think the
9:15
Speaker 4: third branch has been under assault by the administration, and
9:19
Speaker 4: you know, judge's integrity has been questioned, you know, every
9:23
Speaker 4: time they rule in a way that displeases the President
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Speaker 4: and the Attorney General and so forth, you don't need this.
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Speaker 4: This is not helpful. Judges on appellate courts have disagreed
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Speaker 4: since the beginning of the Republic and the creation of
9:36
Speaker 4: the circuit courts, which came along, of course, after the
9:39
Speaker 4: Supreme Court was created, and they've done it with you know,
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Speaker 4: a modicum of civility, but sometimes very directly. This is
9:46
Speaker 4: really beyond the pale. You know, it's hey, look notice me,
9:50
Speaker 4: because I can say really sensational, inflammatory things, and I
9:55
Speaker 4: don't believe that that's appropriate.
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Speaker 2: We mentioned that other instance. Is there a point where
10:00
Speaker 2: there could be disciplinary proceedings?
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Speaker 4: You know, that's an interesting question, Jane. I don't know.
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Speaker 4: I don't think there's anything particularly actionable in the opinion
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Speaker 4: from a judicial discipline standpoint. Generally, something like this, you
10:14
Speaker 4: may get a call from the chief judge of the
10:17
Speaker 4: circuit and you know, kind of be taken to the
10:20
Speaker 4: woodshed by the circuit and say, look, you know, this
10:22
Speaker 4: isn't helpful. I read up on the good Judge Vandyk
10:26
Speaker 4: and I don't think he's of a nature that that
10:29
Speaker 4: would resonate with him. And I'm guessing that perhaps after
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Speaker 4: the video descent in which he was literally brandishing firearms,
10:36
Speaker 4: that he's already had a brushback pitch thrown at him
10:39
Speaker 4: by some colleagues in the circuit. He doesn't appear to
10:42
Speaker 4: be of a mind to listen, so I don't think
10:44
Speaker 4: that would be particularly efficacious in this case.
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Speaker 2: Also, I just want to point out that when he
10:50
Speaker 2: was nominated the American Bar Association rated him not qualified,
10:55
Speaker 2: with some lawyers and judges saying he was arrogant, lazy
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Speaker 2: in an ideologue who doesn't have an open mind.
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Speaker 4: Other than that he's perfectly qualified for the bench. Obviously
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Speaker 4: I read that, and you know, if you get ding
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Speaker 4: like that, and of course a lot of people don't
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Speaker 4: like the ABA process and so forth, but if you
11:11
Speaker 4: get ding like that as you're going through your confirmation,
11:13
Speaker 4: you would think that you'd want to sort of enhance
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Speaker 4: your reputation and proved everybody that you're qualified by doing
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Speaker 4: things like this. It's, you know, just the opposite to
11:24
Speaker 4: my comment earlier jan about you know, working in close quarters.
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Speaker 4: Just imagine the next time this guy is sitting with
11:31
Speaker 4: some of the colleagues who castigated him in this case,
11:34
Speaker 4: it's going to be like he's radioactive, and you can't
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Speaker 4: trust a guy like that to kind of act as
11:40
Speaker 4: according to what I would describe as judicial norms. And
11:43
Speaker 4: this isn't like blazing new territory and deciding cases. This
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Speaker 4: is sensationalistic and I just don't think it as a place.
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Speaker 2: It's always a pleasure to talk with you, Judge Jones,
11:53
Speaker 2: Thanks so much. That's Judge Johnny Jones. The third coming
11:57
Speaker 2: up next, Anthropic showdown with the federal government. I'm June
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Speaker 2: Graso and you're listening to Bloomberg. It's the first time
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Speaker 2: the government has branded a US company a supply chain risk,
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Speaker 2: and Anthropic is fighting back in court to stop what
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Speaker 2: it calls an unlawful campaign of retaliation. Defense Secretary Pete
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Speaker 2: Hegseth made the designation following a dispute with the AI
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Speaker 2: company over guardrails. The company wants to prevent the use
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Speaker 2: of its technology for government surveillance or to power fully
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Speaker 2: autonomous weapons. Dario ama Day, co founder and CEO of Anthropic,
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Speaker 2: explained some of his concerns in an interview with The Economist.
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Speaker 1: There are norms about serving the military, supposed to follow orders,
12:48
Speaker 1: but you know if something, if something crazy enough happened,
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Speaker 1: the soldiers would say, I'm not going to do that, right.
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Speaker 1: What if you have an army of ten million drones
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Speaker 1: instead of you know, ten million human soldiers. What are
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Speaker 1: the norms of the of the AI driven drones.
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Speaker 2: Anthropic is asking a California court to issue a preliminary
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Speaker 2: injunction to block the government's ban. Joining me is Dorothy
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Speaker 2: Lund a professor at Columbia Law School and co director
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Speaker 2: of the Ira M. Milstein Center for Global Markets and
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Speaker 2: Corporate Ownership. Dorothy Defense Secretary Pete Hesif designated Anthropic as
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Speaker 2: a National security supply chain risk. That's a designation that's
13:31
Speaker 2: usually used to bar companies that are linked to foreign adversaries.
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Speaker 5: Yeah, this is quite unusual. I think this is the
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Speaker 5: first time in US history that an American company has
13:42
Speaker 5: been given this designation. So if you look at the
13:45
Speaker 5: companies typically on this list, it's companies with ties to China,
13:50
Speaker 5: ties to Russia that you know, the government wants to
13:53
Speaker 5: say there's particular risks. You know, we would be very
13:56
Speaker 5: cautious about contracting you know, this Chinese company or this
13:59
Speaker 5: Russian company. It's never happened before that a US company
14:02
Speaker 5: has been given this designation.
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Speaker 2: What are the grounds for Anthropics suit against the government.
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Speaker 5: Essentially, Anthropic is saying this designation is not being given
14:13
Speaker 5: for the right reasons. Instead, this is retaliation for our
14:17
Speaker 5: refusal to accede to certain demands that you made that
14:21
Speaker 5: we didn't want to accede to. So you have it
14:24
Speaker 5: really identified a security threat that would cause us to
14:28
Speaker 5: really deserve this label. Instead, you're just punishing us and
14:33
Speaker 5: retaliating against us for not going along with what you've
14:37
Speaker 5: demanded from us in a way that violates all rights.
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Speaker 2: Anthropic says, this is about the guardrails it wants around
14:44
Speaker 2: the use of its technology for mass surveillance or to
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Speaker 2: power autonomous weapons. Is it unusual for a private company
14:54
Speaker 2: to be setting limitations on how its tech is used
14:58
Speaker 2: by the military.
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Speaker 5: You know, the typical sort of thinking here is that
15:04
Speaker 5: it's a matter of corporate governance or corporate decision making
15:08
Speaker 5: for a company that is providing a service to set
15:12
Speaker 5: certain guardrails on that right. You know, this should only
15:16
Speaker 5: be used in certain ways, and the client, even if
15:19
Speaker 5: the client is the Pentagon, the client has the right
15:22
Speaker 5: to say, well, I don't want to work with you.
15:24
Speaker 5: I don't like this contractual limitation that you've given me.
15:28
Speaker 5: But I can break my contract with you. I can
15:30
Speaker 5: go with somebody else, and you know, we'll deal with
15:32
Speaker 5: whatever repercussions the contract says about that. But this is
15:36
Speaker 5: how things work in the free world, right, And sort
15:39
Speaker 5: of another interesting moment where you know, historically the conservative
15:43
Speaker 5: ideology has been very accepting of this idea that private
15:47
Speaker 5: markets will lead to the right results. You wouldn't want
15:50
Speaker 5: to have the government interfering with private markets. And if
15:54
Speaker 5: a private entity doesn't want to do a deal on
15:57
Speaker 5: certain terms, you know that's and the market will sort
16:01
Speaker 5: it out there. Maybe there'll be somebody else that's willing
16:03
Speaker 5: to provide that product at that price or that service
16:05
Speaker 5: under those terms, but that the government wouldn't then try
16:09
Speaker 5: to get into that space and influence it. And so
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Speaker 5: I think it's sort of this interesting moment of the
16:14
Speaker 5: Trump administration doing something that historically conservative politicians have not
16:18
Speaker 5: wanted to do, which is to interfere with markets and
16:21
Speaker 5: sort of how markets set prices and terms and contracting
16:24
Speaker 5: parties that don't like it can walk away, but there's
16:26
Speaker 5: nobody forced to contract with anybody else.
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Speaker 2: The government filed papers in opposition to Anthropics motion for
16:34
Speaker 2: a preliminary injunction, and it said that Anthropics showed hostility
16:39
Speaker 2: in its negotiations with the Pentagon and that led the
16:43
Speaker 2: government to question whether it could be trusted. But the
16:46
Speaker 2: government didn't point to any real security justification for the designation,
16:52
Speaker 2: so it sort of missed the point.
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Speaker 5: And just back to where we started in this conversation,
16:57
Speaker 5: you know, the idea of somebody posed a supply chain risk.
17:01
Speaker 5: Is this idea of like foreign infiltration, the idea that
17:05
Speaker 5: some foreign government that is hostile to the United States
17:09
Speaker 5: is going to get some information or some advantage by
17:13
Speaker 5: virtue of this organization freely contacting in the United States.
17:17
Speaker 5: So even under the terms that the government is bringing
17:19
Speaker 5: up in it suit, the idea that there's hostility towards
17:22
Speaker 5: the government, it doesn't really even speak to foreign infiltration.
17:26
Speaker 5: It just sounds like negotiations didn't go so well. So
17:30
Speaker 5: again I think the hook to the designation seems to
17:33
Speaker 5: be quite tenuous.
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Speaker 2: Anthropic is asking the court for a preliminary injunction, as
17:38
Speaker 2: I mentioned, saying it could damage the company's reputation and
17:43
Speaker 2: cause multiple billions of dollars in losses this year. The
17:47
Speaker 2: hurdles to get a preliminary injunction are high. Do you
17:51
Speaker 2: think Anthropic might clear those hurdles?
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Speaker 5: Typically a preliminary injunction an order to win, you have
17:57
Speaker 5: to show that without giving the junction there's going to
18:01
Speaker 5: be irreparable harm, and there has to be a strong
18:04
Speaker 5: likelihood of winning on the merits. And by the way,
18:06
Speaker 5: this harm can't be something that can be fixed after
18:09
Speaker 5: the fact using money damages, and so I think here
18:13
Speaker 5: in this case, I guess this is a really a
18:14
Speaker 5: good example of where a preliminary injunction would make a
18:17
Speaker 5: lot of sense. You know, I think, Okay, so Anthropic
18:20
Speaker 5: is going to lose this government contract, right, so that
18:24
Speaker 5: is hundreds of millions of dollars. But I think the
18:26
Speaker 5: bigger impact here is the government's demand that no federal
18:31
Speaker 5: agency do work with Anthropic, and also that other third
18:36
Speaker 5: party entities that contractor the government also stop doing business
18:40
Speaker 5: of Enthropic. And that for a company that is in
18:43
Speaker 5: an early stage of growth that is in a really
18:46
Speaker 5: competitive race AI race not just in the United States
18:50
Speaker 5: but also globally, for them to sort of be blacklisted
18:54
Speaker 5: like this is really quite harmful. I mean, you know,
18:57
Speaker 5: I think they're promontators who've looked at this and said,
18:59
Speaker 5: this is the equivalent of giving Anthropic the death penalty,
19:03
Speaker 5: And I don't think that's a real exaggeration. I think,
19:06
Speaker 5: you know, in this moment, for Anthropic to lose the
19:08
Speaker 5: ability to contract with a broad swath of entities would
19:13
Speaker 5: really be damaging. It might not be able to recover
19:16
Speaker 5: from that.
19:16
Speaker 2: Forgetting the legalities for a moment. Even if Anthropic wins
19:21
Speaker 2: and this is lifted this ban, is any agency in
19:25
Speaker 2: the government then going to start doing business with Anthropic
19:29
Speaker 2: knowing the administration's opposition. So won't there be serious consequences
19:35
Speaker 2: for Anthropic even if it wins this lawsuit?
19:38
Speaker 5: For sure, I think the Trump administration really believes in loyalty,
19:43
Speaker 5: and now that they've sort of been given this scarlet
19:47
Speaker 5: letter by President Trump and Pete Hegsas, I'm sure that
19:52
Speaker 5: loyalists and individuals across the government will be wary to
19:57
Speaker 5: work with Anthropic. You know, the government is directed all
19:59
Speaker 5: federal agencies to stop using Anthropic, So I think your
20:03
Speaker 5: intuition is right there. Although I think you know the
20:06
Speaker 5: consequences for Anthropic, although that's not great, there's a much
20:10
Speaker 5: broader market, right Anthropic is looking to a lot of
20:14
Speaker 5: different places for clients, including other governments, you know, other
20:17
Speaker 5: corporate clients. And by the way, there's been a little
20:21
Speaker 5: bit of backlash already against open AI in the wake
20:24
Speaker 5: of their signing up a deal with the government, So
20:27
Speaker 5: I don't know quite how this would sort out. Would
20:30
Speaker 5: Anthropic be rewarded by some swath of clients for sticking
20:34
Speaker 5: to its guns and be able to make up that
20:36
Speaker 5: loss in the future maybe, and will open Air I
20:41
Speaker 5: suffer some backlash for its decision to kind of get
20:44
Speaker 5: in there and essentially poach this client. Maybe. So I
20:48
Speaker 5: think it's just not clear how this is all going
20:49
Speaker 5: to shake out.
20:51
Speaker 2: Other tech companies have filed legal briefs to support Anthropic.
20:56
Speaker 2: Do you think that there is a concern that if
21:00
Speaker 2: this punitive label on Anthropic sticks that it would establish
21:05
Speaker 2: a precedent.
21:07
Speaker 6: Oh?
21:07
Speaker 5: Yeah, absolutely. I mean we're already in a moment is
21:11
Speaker 5: sort of unprecedented moment in American history of executive branch
21:16
Speaker 5: interference with private markets. And I don't want to say
21:20
Speaker 5: this is only a feature of this administration. That's happened
21:23
Speaker 5: during the Biden administration and prior administrations as well, but
21:26
Speaker 5: I think we've really seen the Trump administration take this
21:29
Speaker 5: to new heights. And so I'm sure tech executives all
21:33
Speaker 5: over are looking at this and saying, we don't want
21:35
Speaker 5: to be in a situation where we don't want to
21:38
Speaker 5: agree to certain terms with the US government, whether it
21:41
Speaker 5: be price or substance. And then the US government basically
21:44
Speaker 5: puts us on a list that ensures that we can't survive.
21:47
Speaker 5: You know, I think that's a scary thought. That's a
21:49
Speaker 5: scary path to lock down. And I think even beyond
21:51
Speaker 5: just sort of the typical tech company, AI companies should
21:54
Speaker 5: be looking at this moment and be quite chilled, because,
21:57
Speaker 5: you know, the AI industry is looked down the barrel
22:01
Speaker 5: of a complex relationship with government. Some people say, well,
22:05
Speaker 5: because this technology is so important, it should be nationalized.
22:08
Speaker 5: Others say, you know, this is going to have to
22:10
Speaker 5: be really carefully regulated, and so those regulations haven't come
22:14
Speaker 5: and I think anthropics thought, well, let's get in with
22:16
Speaker 5: the government and hopefully we'll have some ability to influence
22:20
Speaker 5: the path and future direction of how this goes. And
22:22
Speaker 5: it didn't work up so well for them. So for
22:24
Speaker 5: the subset of tech executives that are also working in
22:27
Speaker 5: artificial intelligence, this is sort of a chilling moment because
22:30
Speaker 5: it's just showing you how the government is really willing
22:35
Speaker 5: to go far and interfering with private markets and they're functioning.
22:39
Speaker 5: And it suggests again the people that say well, artificial
22:41
Speaker 5: intelligence should be subject to really burden some regulation and
22:44
Speaker 5: a lot of government interference. It's suggests that yeah, the
22:47
Speaker 5: Trump administration is on board for that.
22:49
Speaker 2: Where does it fit in the picture that Anthropics technology
22:53
Speaker 2: is being used right now in the Iran war?
22:56
Speaker 5: So I think this is a way in which this
22:59
Speaker 5: decision for the government to not just decide, you know, Okay, sure,
23:05
Speaker 5: maybe Pete Hegsas doesn't like how the conversations are going
23:08
Speaker 5: with Anthropic. Maybe Pete Hegsas says, we no longer want
23:11
Speaker 5: to work with them going forward, and we'll figure out
23:13
Speaker 5: a way to sort of disentangle this. You know, this
23:15
Speaker 5: second step though, of trying to basically decapitate this company
23:19
Speaker 5: that is really providing a valuable service for the US
23:22
Speaker 5: military and it's ongoing operations that I think most sensible
23:27
Speaker 5: people think there aren't great replacements available. So, you know,
23:30
Speaker 5: this is sort of a moment where the government is
23:32
Speaker 5: handcapping its own military. And if you have everything sort
23:37
Speaker 5: of up and running on Anthropic, to then CAUSEMA military
23:40
Speaker 5: to then pivot to a completely different platform that most
23:43
Speaker 5: people think is not as well cut out for this task.
23:46
Speaker 5: You know, that's a time consuming, distracting, burdens expensive endeavor.
23:51
Speaker 5: So to sort of handicap yourself like that, and then
23:53
Speaker 5: Panthropic is one of the most important and vital artificial
23:57
Speaker 5: intelligence companies that's produced in America. So it's also handicapping
24:01
Speaker 5: a home grown champion company in this race for AI dominance.
24:07
Speaker 5: So again, it's sort of a funny strategy on multiple fronts.
24:11
Speaker 5: And you know, if we want to be generous the
24:13
Speaker 5: US government, sure, that's totally within their right if they
24:16
Speaker 5: think that their contracting party has terms that they don't
24:19
Speaker 5: want to bide by, that you have the right to
24:21
Speaker 5: walk away, But then to take this extra step of
24:24
Speaker 5: me capping them is just bizarre.
24:27
Speaker 2: Well, we'll see what a judge thinks about all this
24:29
Speaker 2: next Tuesday at the first hearing in the case. Thanks
24:33
Speaker 2: so much, Dorothy. That's Columbia Law School professor Dorothy Lund.
24:38
Speaker 2: Coming up next on the Bloomberg Law Show is the
24:41
Speaker 2: Supreme Court listening to criticism. I'm June Grosso and this
24:46
Speaker 2: is Bloomberg. Since President Trump returned to office, his administration
24:52
Speaker 2: has made twenty seven emergency request to the Supreme Court,
24:56
Speaker 2: and the justices have granted those requests a remarkable twenty
25:00
Speaker 2: three times. But Trump is ignoring that extraordinary win loss
25:05
Speaker 2: record since the Court decided against his signature tariffs, and
25:10
Speaker 2: on Monday, in the Oval office. Trump once again complained
25:14
Speaker 2: about his Supreme Court nominees.
25:16
Speaker 7: Republicans go the opposite way. If Donald Trump appointed me,
25:21
Speaker 7: I'm going to show the world that I can be
25:25
Speaker 7: totally just, that I can be independent of that of Trump.
25:31
Speaker 4: He's not controlling me.
25:33
Speaker 2: At the same time, pressure is growing on the Supreme
25:36
Speaker 2: Court over all those Trump emergency wins, and it appears
25:41
Speaker 2: the justices are making some changes in response. Joining me
25:46
Speaker 2: is Bloomberg Legal reporter Zoe Tillman. Zoe tell us about
25:49
Speaker 2: the criticism of the Supreme Court's handling of the emergency docket,
25:55
Speaker 2: and you know President Trump's extraordinary record of wins.
25:59
Speaker 6: So this option of pursuing emergency relief from the justices
26:04
Speaker 6: has existed for a long time. In the past, there
26:07
Speaker 6: were instances where on a you know, underscore emergency basis,
26:12
Speaker 6: issues would go up while they were still pending in
26:14
Speaker 6: lower courts because parties felt that there was this need
26:17
Speaker 6: for a sort of immediate resolution of the status quo
26:21
Speaker 6: by the justices. But it was it was rare, and
26:24
Speaker 6: I think that seemed to reflect what the intent was
26:28
Speaker 6: of calling something an emergency. So during the first Trump administration,
26:32
Speaker 6: there was this uptick in instances when the government, after
26:36
Speaker 6: losing repeatedly in lower courts, would turn to the justices
26:40
Speaker 6: to say, you know, this case is still pending, but
26:44
Speaker 6: there are reasons why we're going to be irreparably harmed
26:47
Speaker 6: if you don't step in now, and you know, let
26:50
Speaker 6: things continue as we want them to while this is
26:52
Speaker 6: going forward. Under the Bid administration, it went down a
26:56
Speaker 6: bit from Trump one, but we still sort of more
27:00
Speaker 6: use of the docket. I think Trump one really opened
27:03
Speaker 6: the door to this becoming a more commonplace part of
27:07
Speaker 6: legal strategy. And then since Trump came back to office,
27:11
Speaker 6: and you know, there's been a wave of unprecedented, novel,
27:16
Speaker 6: expansive uses of executive power that have faced a wave
27:20
Speaker 6: of flood of lawsuits. There's been then another flood wave
27:25
Speaker 6: whatever metaphor you want to use to describe injunctions and
27:29
Speaker 6: orders against the government, and they've been taking those up
27:32
Speaker 6: at a much higher rate to the justices.
27:34
Speaker 5: Now.
27:34
Speaker 6: The criticism is that increasingly it's becoming a more commonplace
27:39
Speaker 6: part of the legal process in a way that many
27:42
Speaker 6: critics say it's not supposed to be. That you're sort
27:46
Speaker 6: of skipping, leap frogging. What's supposed to happen in the
27:49
Speaker 6: lower courts. There's supposed to be a full airing of
27:51
Speaker 6: the facts. Judges are supposed to get some time to
27:54
Speaker 6: really think about the full record, analyze the law, hand
27:58
Speaker 6: down fully reasoned decisions, and then parties can ask the
28:02
Speaker 6: Supreme Court to come in and do their own review
28:05
Speaker 6: of this. But by going to the justices early, the
28:09
Speaker 6: ideas that you're sort of short circuiting all of this
28:11
Speaker 6: and there's no longer a full airing before the justices
28:14
Speaker 6: put this sort of thumb on the scale and say, yes,
28:17
Speaker 6: you can fire all these people even though the case
28:19
Speaker 6: isn't over yet, or yes, you can refuse to pay
28:22
Speaker 6: out all this money, or you can try to deport
28:25
Speaker 6: a lot of people even though the case isn't over yet.
28:28
Speaker 6: So that's how we got here.
28:30
Speaker 2: One of the major criticisms is that in many of
28:34
Speaker 2: these emergency orders, the justices have given little or no
28:39
Speaker 2: explanation for their actions, and that's led district court judges
28:44
Speaker 2: and even appellate court judges to reach different outcomes from
28:48
Speaker 2: the Supreme courts, saying there's a lack of guidance from
28:51
Speaker 2: the justices.
28:52
Speaker 6: That's right, and there's been this sort of extraordinary dialogue
28:56
Speaker 6: at times, disagreement, open disagreement unfolding between lower court judges
29:02
Speaker 6: and the justices, with the Justice departments sort of serving
29:05
Speaker 6: as the intermediary where district judges circuit judges will hand down,
29:10
Speaker 6: you know, opinions, dozens of pages, fully analyzed, the Justice
29:14
Speaker 6: Department gets an order from the Supreme Court. You know,
29:17
Speaker 6: some of these are a couple sentences, a couple of paragraphs.
29:20
Speaker 6: Sometimes they offer a reason in some summarized way, but
29:24
Speaker 6: sometimes they don't. And then the Justice Department is taking
29:27
Speaker 6: these and going back to lower courts and saying, see,
29:30
Speaker 6: we one, this means the court is going to side
29:32
Speaker 6: with us. Generally you need to back off. And lower
29:35
Speaker 6: court judges are saying, that is not at all how
29:37
Speaker 6: this works. It is not our job to read tea leaves.
29:40
Speaker 6: That was a phrase one judge actually used. That it's
29:43
Speaker 6: really not supposed to happen that way, and it's not appropriate.
29:46
Speaker 6: Judges are saying for it to happen that way, we're
29:48
Speaker 6: not supposed to infer what the Supreme Court wants. They're
29:51
Speaker 6: supposed to give us precedent that we can clearly apply.
29:54
Speaker 6: You know, last year there was sort of open disagreement
29:57
Speaker 6: that broke out where in another round of cases, judges
30:01
Speaker 6: were sort of not taking the approach the Justice Department wanted,
30:05
Speaker 6: and Justice Neil Gorsich wrote openly that they're not doing
30:08
Speaker 6: what they're supposed to do, and then lower court judges
30:10
Speaker 6: pushed back and bristled at Justice Gorsuch's comments. I mean,
30:15
Speaker 6: there's sort of this open disagreement, which is extraordinary to see,
30:18
Speaker 6: and that kind of died down a bit, and now
30:21
Speaker 6: again there's been this uptick in courts saying they just
30:25
Speaker 6: haven't given us enough to work with.
30:26
Speaker 2: Yeah, those exchanges were extraordinary. One area where the courts
30:31
Speaker 2: are saying they don't have enough guidance from the Supreme
30:34
Speaker 2: Court is in cases involving Temporary Protected Status, which allows
30:39
Speaker 2: immigrants whose home countries are in crisis to temporarily live
30:44
Speaker 2: and work in the US, and lawsuits challenging the administration's
30:49
Speaker 2: efforts to revoke TPS status for migrants from several countries
30:55
Speaker 2: has become sort of a flashpoint in this criticism of
30:59
Speaker 2: the urgency docket. How do we get here?
31:03
Speaker 4: So?
31:03
Speaker 6: Last year, the Homeland Security Secretary Christine Nome began rolling
31:08
Speaker 6: out announcements that they were terminating temporary protected status for
31:13
Speaker 6: a number of countries. I think it's something like seventeen
31:16
Speaker 6: at the start of twenty twenty five had tps, and
31:20
Speaker 6: to date I think it's thirteen where Nome has announced
31:24
Speaker 6: they're terminating the status. But the challengers say that there's
31:28
Speaker 6: administrative steps that she's not following. The other argument and
31:32
Speaker 6: allegation is that whatever reasons this administration is giving is
31:36
Speaker 6: actually pretextual, and that it is because these are people
31:40
Speaker 6: from parts of the world or people from ethnic backgrounds
31:44
Speaker 6: that this administration does not want in the United States,
31:47
Speaker 6: and that there is a discriminatory, a hostile purpose behind
31:51
Speaker 6: these cancelations that violates the rights of these migrants. And
31:55
Speaker 6: we've had some judges finding that they think the evidence
31:58
Speaker 6: does support those allegations, as well as finding that just
32:02
Speaker 6: process wise, they've gone about this in an unlawful way.
32:06
Speaker 6: So as terminations were announced, lawsuits hit the docket. We've
32:10
Speaker 6: had lower courts, mostly although not exclusively, siding with challengers,
32:16
Speaker 6: granting preliminary injunctions stopping these terminations from taking effect. Going
32:20
Speaker 6: up on appeal appeals courts often affirming what the lower
32:24
Speaker 6: courts have done, but what's been sort of fascinating about
32:27
Speaker 6: these cases is there's been two times the Supreme Court
32:31
Speaker 6: has weighed in in a case involving Venezuelan's and both
32:33
Speaker 6: times they sided with the government and said, yes, you
32:36
Speaker 6: can go ahead with terminating their status. And after both
32:40
Speaker 6: of those orders, lower courts in large parts said like,
32:44
Speaker 6: this does not apply to me. There was no reasoning here.
32:47
Speaker 6: Venezuela is a different country from the country that I'm
32:50
Speaker 6: looking at, and without the justices telling me, you know,
32:54
Speaker 6: here's the reasoning that should apply more broadly, we're not
32:58
Speaker 6: going to back off. And so the issue is now
33:01
Speaker 6: back before the Justices.
33:03
Speaker 2: This time it's about the administration wanting to revoke temporary
33:07
Speaker 2: protected status for about three hundred and fifty thousand Haitians
33:11
Speaker 2: and Syrians, again on an emergency basis, and this time
33:16
Speaker 2: they added a request for a full review of the cases.
33:21
Speaker 2: So basically, we're doing this on the emergency docket, but
33:24
Speaker 2: we want you to handle it as if it were
33:27
Speaker 2: on the regular docket.
33:29
Speaker 6: It's quite unusual. Everything about this is quite unusual. And
33:33
Speaker 6: you know what we saw was the court this time
33:36
Speaker 6: saying we are not going to immediately intervene here there
33:40
Speaker 6: was an ask by the Justice Department to lift the
33:44
Speaker 6: lower court rulings now while the case goes forward, which
33:48
Speaker 6: would effectively put the Haitians and Syrians on the table
33:53
Speaker 6: for potential detention and deportation. So Justice has said this time,
33:57
Speaker 6: we're not going to take that approach. We're going to
33:59
Speaker 6: hold up off here for now. But in a very
34:02
Speaker 6: unusual move, they did say yes, we will skip the
34:05
Speaker 6: rest of the proceedings in the Circuit court and we
34:07
Speaker 6: will take this up on the merits. They are going
34:10
Speaker 6: to have arguments in April. So the government got some
34:13
Speaker 6: of what it wanted here. This is certainly fast tracking it.
34:16
Speaker 6: This is not what the challengers wanted. They wanted to
34:19
Speaker 6: let the circuit courts complete their process, you know, give
34:23
Speaker 6: fully reasoned opinions, and then if the government wanted to
34:26
Speaker 6: take this up they could. But at a minimum, it
34:28
Speaker 6: does seem to be the court saying we are going
34:31
Speaker 6: to give you reasons here that even if they do
34:34
Speaker 6: end up siding with the government, they're going to do
34:36
Speaker 6: it in some ways. At least that looks more like
34:39
Speaker 6: normal process that lower courts can then turn to to say, okay,
34:44
Speaker 6: this is the precedent this is what they're telling us
34:46
Speaker 6: to do, Zoe.
34:48
Speaker 2: There was an unusual amikus or friend of the court
34:51
Speaker 2: brief signed by former state and federal judges, both Republican
34:56
Speaker 2: appointees and Democratic appointees, urging and justice is to let
35:01
Speaker 2: the full legal process play out before intervening. Do you
35:05
Speaker 2: think that influenced the justices.
35:08
Speaker 6: The order that they handed down doesn't explain sorting keeping
35:13
Speaker 6: with the prize surprise. It didn't explain why they decided
35:16
Speaker 6: to take the approach that they did this time. So
35:19
Speaker 6: you know, they didn't say, we heard your complaints and
35:21
Speaker 6: so we're going to go to the merits instead of
35:24
Speaker 6: ruling on the emergency docket. They didn't say that, you know,
35:26
Speaker 6: so we don't know what was in their heads that said.
35:29
Speaker 6: What we know is what's happened, which is they have
35:32
Speaker 6: a record of lower courts really talking to them through
35:35
Speaker 6: opinions saying you need to give us more. You know,
35:38
Speaker 6: if you want us to let the government terminate TPS,
35:41
Speaker 6: you need to tell us why in a way that
35:43
Speaker 6: we can apply. So there's a record of that, and
35:45
Speaker 6: you have this friend of court brief signed by more
35:48
Speaker 6: than one hundred and seventy five former federal and state
35:52
Speaker 6: judges coming to the defense of lower courts here and saying,
35:56
Speaker 6: you know, it's really not fair to accuse them of
35:59
Speaker 6: doing something wrong. This is about the legitimacy of the
36:02
Speaker 6: Supreme Court. More broadly, that if you want the public
36:05
Speaker 6: and the rest of the courts to take seriously and
36:09
Speaker 6: respect the work that the Supreme Court is doing, that
36:11
Speaker 6: they need to slow down and show their work. And
36:13
Speaker 6: this past year, I think because there's been this escalation
36:17
Speaker 6: of attacks coming from the President directly, coming from other officials,
36:22
Speaker 6: coming from conservative allies, really attacking sometimes judges by name
36:27
Speaker 6: who have ruled against this administration, making comments that question
36:31
Speaker 6: the integrity of what the lower courts do and the
36:34
Speaker 6: work of judges. There's been this outpouring of support coming
36:38
Speaker 6: from former judges. Occasionally we have sitting judges speaking up,
36:42
Speaker 6: which is one of the most extraordinary if we're going
36:45
Speaker 6: to make a list of extraordinary things, here, one of
36:46
Speaker 6: the most extraordinary things that we've seen. You know, the
36:49
Speaker 6: consequences for TPS holders, for them, the stakes are extremely high.
36:54
Speaker 6: So there is on the one hand, you know, the
36:56
Speaker 6: high human stakes for the people involved here. I think
36:59
Speaker 6: also a lot of people see these types of cases
37:02
Speaker 6: as high stakes for the role the judiciary plays and
37:07
Speaker 6: the credibility and legitimacy of the work that the courts
37:10
Speaker 6: do and whether they can function as a robust check
37:14
Speaker 6: on the other branches.
37:15
Speaker 2: And with the expedited schedule, we'll find out how the
37:19
Speaker 2: justices think by July. Thanks so much, Zoe. That's Bloomberg
37:23
Speaker 2: Legal Reporter Zoe Tillman, and that's it for this edition
37:26
Speaker 2: of The Bloomberg Law Show. Remember you can always get
37:28
Speaker 2: the latest legal news on our Bloomberg Law podcast. You
37:32
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37:36
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37:40
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
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Speaker 2: ten pm Wall Street Time. I'm June Grosso, and you're
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Speaker 2: listening to Bloomberg