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Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.

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Speaker 2: With violent threats against federal judges rising, the Chief Justice

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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,

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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

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Speaker 2: Trump's extraordinary verbal attacks on the justices who voted to

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Speaker 2: strike down his global tariffs a month ago. Trump called

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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

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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

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Speaker 3: a focus on legal analysis to personalities, and you see

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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,

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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

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Speaker 2: need to come to the defense of federal judges. My guests,

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Speaker 2: retired federal judge Johnny Jones third, he's the president of

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Speaker 2: Dickinson College, Judge Jones, what's your take on the Chief

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Speaker 2: Justice's warning.

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Speaker 4: Yeah, this is a big statement from the Chief And

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Speaker 4: I absolutely respect the Chief Justice. I think that he's

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Speaker 4: been a terrific leader of the federal courts. Agree or

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Speaker 4: disagree with his decisions. Became Chief Justice when I was

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Speaker 4: on the bench. You know, he's stood up historically for

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Speaker 4: his judges. But for him to go this far means

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Speaker 4: to me that he appreciates that this has reached critical mass.

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Speaker 4: I was privileged to be on sixty Minutes a couple

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Speaker 4: of weeks ago and a spot on threats against the judiciary,

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Speaker 4: and I said very straightforwardly that we're going to get

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Speaker 4: a judge killed if we're not careful. And I think

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Speaker 4: this is resonating now with the Supreme Court. And while

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Speaker 4: I know that the Chief was being cautious, although his

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Speaker 4: statements were pretty strong, pretty profound, that it has to stop. Look,

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Speaker 4: there's only one set of offenders right now. You could

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Speaker 4: go back and talk about Chuck Schumer, and you can

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Speaker 4: talk about other people who made comments about decisions by

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Speaker 4: Republican appointed judges, but they're completely different in their nature

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Speaker 4: than the constant drumbeat from this administration literally from January

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Speaker 4: twentieth of last year year. And you know, I think

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Speaker 4: the president's rhetoric, the Attorney General's rhetoric, Todd Blanche for example,

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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

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Speaker 4: to them anonymously, and somebody's going to take up arms

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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

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Speaker 4: of it, and that's why he picked a spot at

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Speaker 4: Rice University and decided to speak out. Good for him.

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Speaker 2: Do you have any confidence that this is going to

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Speaker 2: get the president or those in his administration to tame

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Speaker 2: their remarks.

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Speaker 4: Well, it won't stop, June. But I'll tell you what's happening.

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Speaker 4: You know, you're seeing for the first time now that

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Speaker 4: grand juries are not indicting people. They're issuing no bills

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Speaker 4: in cases. So this president would want to, I think,

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Speaker 4: use the apparatus of the criminal justice system of the

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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

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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,

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Speaker 4: Judge Bozburg, for example, you know, who quashed a subpoena

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Speaker 4: almost never happens in the case of Jerome Powell. So

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Speaker 4: judges and grand jurors are wise to the ways of

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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

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Speaker 4: to the court is observed in the breach I think

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Speaker 4: by government attorneys daily. They have utterly lost their credibility

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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

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Speaker 4: because you know, I learned over my almost twenty years

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Speaker 4: in the bench that the Justice Department was extremely professional

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Speaker 4: and reliable, and you know, you typically could take them

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Speaker 4: at their word. That has been eviscerated by this administration.

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Speaker 4: So while I don't expect them to stop, they're reaping

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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.

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Speaker 2: Judge Let's turn out to a different topic, a very

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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

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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

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Speaker 2: known SPA that wanted to exclude transgender women on free

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Speaker 2: speech grounds, and judges from across the ideological spectrum condemned

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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

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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

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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

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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

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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

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Speaker 4: come from all stripes, and I had a very diverse

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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

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Speaker 4: activities and attitudes at the door and really work to

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Speaker 4: get along with your colleagues for the good of the

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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

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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

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Speaker 2: referred to as auditions for the Supreme Court. Judges trying

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Speaker 2: to get the attention of President Trump in order to

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Speaker 2: get nominated to the Court.

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Speaker 4: You know, I guess that you could say that he's

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Speaker 4: auditioning for something I don't know what, And I think

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Speaker 4: that he's going to have a hard time if his

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Speaker 4: quest is, you know, to be taken seriously as a

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Speaker 4: Supreme Court nominee. He's getting an F grade in that.

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Speaker 4: I don't think it's going to work for him. This

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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

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Speaker 4: perfectly honest, but it could get viral. I guess it's

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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

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Speaker 4: third branch has been under assault by the administration, and

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Speaker 4: you know, judge's integrity has been questioned, you know, every

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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

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Speaker 4: the circuit courts, which came along, of course, after the

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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

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Speaker 4: really beyond the pale. You know, it's hey, look notice me,

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Speaker 4: because I can say really sensational, inflammatory things, and I

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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

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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

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Speaker 4: may get a call from the chief judge of the

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Speaker 4: circuit and you know, kind of be taken to the

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Speaker 4: woodshed by the circuit and say, look, you know, this

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Speaker 4: isn't helpful. I read up on the good Judge Vandyk

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Speaker 4: and I don't think he's of a nature that that

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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,

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Speaker 4: that he's already had a brushback pitch thrown at him

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Speaker 4: by some colleagues in the circuit. He doesn't appear to

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Speaker 4: be of a mind to listen, so I don't think

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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

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Speaker 2: was nominated the American Bar Association rated him not qualified,

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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

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Speaker 4: get ding like that as you're going through your confirmation,

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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

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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

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Speaker 4: some of the colleagues who castigated him in this case,

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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

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Speaker 4: according to what I would describe as judicial norms. And

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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,

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Speaker 2: Thanks so much. That's Judge Johnny Jones. The third coming

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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,

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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

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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

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Speaker 5: been given this designation. So if you look at the

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Speaker 5: companies typically on this list, it's companies with ties to China,

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Speaker 5: ties to Russia that you know, the government wants to

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Speaker 5: say there's particular risks. You know, we would be very

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Speaker 5: cautious about contracting you know, this Chinese company or this

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Speaker 5: Russian company. It's never happened before that a US company

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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

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Speaker 5: for the right reasons. Instead, this is retaliation for our

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Speaker 5: refusal to accede to certain demands that you made that

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Speaker 5: we didn't want to accede to. So you have it

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Speaker 5: really identified a security threat that would cause us to

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Speaker 5: really deserve this label. Instead, you're just punishing us and

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Speaker 5: retaliating against us for not going along with what you've

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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

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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

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Speaker 2: to be setting limitations on how its tech is used

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Speaker 2: by the military.

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Speaker 5: You know, the typical sort of thinking here is that

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Speaker 5: it's a matter of corporate governance or corporate decision making

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Speaker 5: for a company that is providing a service to set

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Speaker 5: certain guardrails on that right. You know, this should only

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Speaker 5: be used in certain ways, and the client, even if

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Speaker 5: the client is the Pentagon, the client has the right

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Speaker 5: to say, well, I don't want to work with you.

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Speaker 5: I don't like this contractual limitation that you've given me.

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Speaker 5: But I can break my contract with you. I can

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Speaker 5: go with somebody else, and you know, we'll deal with

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Speaker 5: whatever repercussions the contract says about that. But this is

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Speaker 5: how things work in the free world, right, And sort

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Speaker 5: of another interesting moment where you know, historically the conservative

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Speaker 5: ideology has been very accepting of this idea that private

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Speaker 5: markets will lead to the right results. You wouldn't want

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Speaker 5: to have the government interfering with private markets. And if

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Speaker 5: a private entity doesn't want to do a deal on

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Speaker 5: certain terms, you know that's and the market will sort

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Speaker 5: it out there. Maybe there'll be somebody else that's willing

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Speaker 5: to provide that product at that price or that service

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Speaker 5: under those terms, but that the government wouldn't then try

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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

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Speaker 5: Trump administration doing something that historically conservative politicians have not

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Speaker 5: wanted to do, which is to interfere with markets and

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Speaker 5: sort of how markets set prices and terms and contracting

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Speaker 5: parties that don't like it can walk away, but there's

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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

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Speaker 2: a preliminary injunction, and it said that Anthropics showed hostility

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Speaker 2: in its negotiations with the Pentagon and that led the

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Speaker 2: government to question whether it could be trusted. But the

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Speaker 2: government didn't point to any real security justification for the designation,

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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,

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Speaker 5: you know, the idea of somebody posed a supply chain risk.

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Speaker 5: Is this idea of like foreign infiltration, the idea that

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Speaker 5: some foreign government that is hostile to the United States

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Speaker 5: is going to get some information or some advantage by

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Speaker 5: virtue of this organization freely contacting in the United States.

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Speaker 5: So even under the terms that the government is bringing

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Speaker 5: up in it suit, the idea that there's hostility towards

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Speaker 5: the government, it doesn't really even speak to foreign infiltration.

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Speaker 5: It just sounds like negotiations didn't go so well. So

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Speaker 5: again I think the hook to the designation seems to

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Speaker 5: be quite tenuous.

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Speaker 2: Anthropic is asking the court for a preliminary injunction, as

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Speaker 2: I mentioned, saying it could damage the company's reputation and

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Speaker 2: cause multiple billions of dollars in losses this year. The

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Speaker 2: hurdles to get a preliminary injunction are high. Do you

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Speaker 2: think Anthropic might clear those hurdles?

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Speaker 5: Typically a preliminary injunction an order to win, you have

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Speaker 5: to show that without giving the junction there's going to

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Speaker 5: be irreparable harm, and there has to be a strong

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Speaker 5: likelihood of winning on the merits. And by the way,

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Speaker 5: this harm can't be something that can be fixed after

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Speaker 5: the fact using money damages, and so I think here

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Speaker 5: in this case, I guess this is a really a

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Speaker 5: good example of where a preliminary injunction would make a

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Speaker 5: lot of sense. You know, I think, Okay, so Anthropic

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Speaker 5: is going to lose this government contract, right, so that

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Speaker 5: is hundreds of millions of dollars. But I think the

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Speaker 5: bigger impact here is the government's demand that no federal

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Speaker 5: agency do work with Anthropic, and also that other third

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Speaker 5: party entities that contractor the government also stop doing business

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Speaker 5: of Enthropic. And that for a company that is in

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Speaker 5: an early stage of growth that is in a really

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Speaker 5: competitive race AI race not just in the United States

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Speaker 5: but also globally, for them to sort of be blacklisted

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Speaker 5: like this is really quite harmful. I mean, you know,

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Speaker 5: I think they're promontators who've looked at this and said,

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Speaker 5: this is the equivalent of giving Anthropic the death penalty,

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Speaker 5: And I don't think that's a real exaggeration. I think,

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Speaker 5: you know, in this moment, for Anthropic to lose the

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Speaker 5: ability to contract with a broad swath of entities would

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Speaker 5: really be damaging. It might not be able to recover

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Speaker 5: from that.

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Speaker 2: Forgetting the legalities for a moment. Even if Anthropic wins

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Speaker 2: and this is lifted this ban, is any agency in

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Speaker 2: the government then going to start doing business with Anthropic

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Speaker 2: knowing the administration's opposition. So won't there be serious consequences

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Speaker 2: for Anthropic even if it wins this lawsuit?

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Speaker 5: For sure, I think the Trump administration really believes in loyalty,

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Speaker 5: and now that they've sort of been given this scarlet

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Speaker 5: letter by President Trump and Pete Hegsas, I'm sure that

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Speaker 5: loyalists and individuals across the government will be wary to

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Speaker 5: work with Anthropic. You know, the government is directed all

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Speaker 5: federal agencies to stop using Anthropic, So I think your

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Speaker 5: intuition is right there. Although I think you know the

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Speaker 5: consequences for Anthropic, although that's not great, there's a much

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Speaker 5: broader market, right Anthropic is looking to a lot of

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Speaker 5: different places for clients, including other governments, you know, other

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Speaker 5: corporate clients. And by the way, there's been a little

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Speaker 5: bit of backlash already against open AI in the wake

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Speaker 5: of their signing up a deal with the government, So

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Speaker 5: I don't know quite how this would sort out. Would

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Speaker 5: Anthropic be rewarded by some swath of clients for sticking

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Speaker 5: to its guns and be able to make up that

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Speaker 5: loss in the future maybe, and will open Air I

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Speaker 5: suffer some backlash for its decision to kind of get

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Speaker 5: in there and essentially poach this client. Maybe. So I

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Speaker 5: think it's just not clear how this is all going

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Speaker 5: to shake out.

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Speaker 2: Other tech companies have filed legal briefs to support Anthropic.

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Speaker 2: Do you think that there is a concern that if

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Speaker 2: this punitive label on Anthropic sticks that it would establish

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Speaker 2: a precedent.

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Speaker 6: Oh?

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Speaker 5: Yeah, absolutely. I mean we're already in a moment is

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Speaker 5: sort of unprecedented moment in American history of executive branch

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Speaker 5: interference with private markets. And I don't want to say

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Speaker 5: this is only a feature of this administration. That's happened

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Speaker 5: during the Biden administration and prior administrations as well, but

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Speaker 5: I think we've really seen the Trump administration take this

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Speaker 5: to new heights. And so I'm sure tech executives all

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Speaker 5: over are looking at this and saying, we don't want

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Speaker 5: to be in a situation where we don't want to

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Speaker 5: agree to certain terms with the US government, whether it

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Speaker 5: be price or substance. And then the US government basically

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Speaker 5: puts us on a list that ensures that we can't survive.

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Speaker 5: You know, I think that's a scary thought. That's a

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Speaker 5: scary path to lock down. And I think even beyond

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Speaker 5: just sort of the typical tech company, AI companies should

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Speaker 5: be looking at this moment and be quite chilled, because,

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Speaker 5: you know, the AI industry is looked down the barrel

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Speaker 5: of a complex relationship with government. Some people say, well,

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Speaker 5: because this technology is so important, it should be nationalized.

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Speaker 5: Others say, you know, this is going to have to

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Speaker 5: be really carefully regulated, and so those regulations haven't come

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Speaker 5: and I think anthropics thought, well, let's get in with

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Speaker 5: the government and hopefully we'll have some ability to influence

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Speaker 5: the path and future direction of how this goes. And

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Speaker 5: it didn't work up so well for them. So for

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Speaker 5: the subset of tech executives that are also working in

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Speaker 5: artificial intelligence, this is sort of a chilling moment because

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Speaker 5: it's just showing you how the government is really willing

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Speaker 5: to go far and interfering with private markets and they're functioning.

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Speaker 5: And it suggests again the people that say well, artificial

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Speaker 5: intelligence should be subject to really burden some regulation and

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Speaker 5: a lot of government interference. It's suggests that yeah, the

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Speaker 5: Trump administration is on board for that.

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Speaker 2: Where does it fit in the picture that Anthropics technology

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Speaker 2: is being used right now in the Iran war?

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Speaker 5: So I think this is a way in which this

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Speaker 5: decision for the government to not just decide, you know, Okay, sure,

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Speaker 5: maybe Pete Hegsas doesn't like how the conversations are going

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Speaker 5: with Anthropic. Maybe Pete Hegsas says, we no longer want

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Speaker 5: to work with them going forward, and we'll figure out

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Speaker 5: a way to sort of disentangle this. You know, this

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Speaker 5: second step though, of trying to basically decapitate this company

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Speaker 5: that is really providing a valuable service for the US

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Speaker 5: military and it's ongoing operations that I think most sensible

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Speaker 5: people think there aren't great replacements available. So, you know,

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Speaker 5: this is sort of a moment where the government is

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Speaker 5: handcapping its own military. And if you have everything sort

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Speaker 5: of up and running on Anthropic, to then CAUSEMA military

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Speaker 5: to then pivot to a completely different platform that most

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Speaker 5: people think is not as well cut out for this task.

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Speaker 5: You know, that's a time consuming, distracting, burdens expensive endeavor.

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Speaker 5: So to sort of handicap yourself like that, and then

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Speaker 5: Panthropic is one of the most important and vital artificial

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Speaker 5: intelligence companies that's produced in America. So it's also handicapping

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Speaker 5: a home grown champion company in this race for AI dominance.

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Speaker 5: So again, it's sort of a funny strategy on multiple fronts.

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Speaker 5: And you know, if we want to be generous the

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Speaker 5: US government, sure, that's totally within their right if they

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Speaker 5: think that their contracting party has terms that they don't

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Speaker 5: want to bide by, that you have the right to

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Speaker 5: walk away, But then to take this extra step of

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Speaker 5: me capping them is just bizarre.

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Speaker 2: Well, we'll see what a judge thinks about all this

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Speaker 2: next Tuesday at the first hearing in the case. Thanks

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Speaker 2: so much, Dorothy. That's Columbia Law School professor Dorothy Lund.

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Speaker 2: Coming up next on the Bloomberg Law Show is the

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Speaker 2: Supreme Court listening to criticism. I'm June Grosso and this

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Speaker 2: is Bloomberg. Since President Trump returned to office, his administration

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Speaker 2: has made twenty seven emergency request to the Supreme Court,

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Speaker 2: and the justices have granted those requests a remarkable twenty

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Speaker 2: three times. But Trump is ignoring that extraordinary win loss

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Speaker 2: record since the Court decided against his signature tariffs, and

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Speaker 2: on Monday, in the Oval office. Trump once again complained

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Speaker 2: about his Supreme Court nominees.

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Speaker 7: Republicans go the opposite way. If Donald Trump appointed me,

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Speaker 7: I'm going to show the world that I can be

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Speaker 7: totally just, that I can be independent of that of Trump.

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Speaker 4: He's not controlling me.

435
00:25:33,080 --> 00:25:36,280
Speaker 2: At the same time, pressure is growing on the Supreme

436
00:25:36,400 --> 00:25:41,000
Speaker 2: Court over all those Trump emergency wins, and it appears

437
00:25:41,080 --> 00:25:45,960
Speaker 2: the justices are making some changes in response. Joining me

438
00:25:46,040 --> 00:25:49,800
Speaker 2: is Bloomberg Legal reporter Zoe Tillman. Zoe tell us about

439
00:25:49,840 --> 00:25:55,080
Speaker 2: the criticism of the Supreme Court's handling of the emergency docket,

440
00:25:55,240 --> 00:25:59,040
Speaker 2: and you know President Trump's extraordinary record of wins.

441
00:25:59,640 --> 00:26:04,399
Speaker 6: So this option of pursuing emergency relief from the justices

442
00:26:04,640 --> 00:26:07,400
Speaker 6: has existed for a long time. In the past, there

443
00:26:07,400 --> 00:26:12,200
Speaker 6: were instances where on a you know, underscore emergency basis,

444
00:26:12,280 --> 00:26:14,720
Speaker 6: issues would go up while they were still pending in

445
00:26:14,800 --> 00:26:17,720
Speaker 6: lower courts because parties felt that there was this need

446
00:26:17,760 --> 00:26:21,560
Speaker 6: for a sort of immediate resolution of the status quo

447
00:26:21,680 --> 00:26:24,320
Speaker 6: by the justices. But it was it was rare, and

448
00:26:24,400 --> 00:26:28,000
Speaker 6: I think that seemed to reflect what the intent was

449
00:26:28,400 --> 00:26:32,160
Speaker 6: of calling something an emergency. So during the first Trump administration,

450
00:26:32,240 --> 00:26:36,280
Speaker 6: there was this uptick in instances when the government, after

451
00:26:36,400 --> 00:26:40,640
Speaker 6: losing repeatedly in lower courts, would turn to the justices

452
00:26:40,680 --> 00:26:43,679
Speaker 6: to say, you know, this case is still pending, but

453
00:26:44,280 --> 00:26:47,080
Speaker 6: there are reasons why we're going to be irreparably harmed

454
00:26:47,320 --> 00:26:50,240
Speaker 6: if you don't step in now, and you know, let

455
00:26:50,280 --> 00:26:52,800
Speaker 6: things continue as we want them to while this is

456
00:26:52,840 --> 00:26:56,639
Speaker 6: going forward. Under the Bid administration, it went down a

457
00:26:56,680 --> 00:27:00,240
Speaker 6: bit from Trump one, but we still sort of more

458
00:27:00,359 --> 00:27:03,080
Speaker 6: use of the docket. I think Trump one really opened

459
00:27:03,359 --> 00:27:07,000
Speaker 6: the door to this becoming a more commonplace part of

460
00:27:07,080 --> 00:27:10,600
Speaker 6: legal strategy. And then since Trump came back to office,

461
00:27:11,080 --> 00:27:16,199
Speaker 6: and you know, there's been a wave of unprecedented, novel,

462
00:27:16,359 --> 00:27:20,119
Speaker 6: expansive uses of executive power that have faced a wave

463
00:27:20,280 --> 00:27:25,399
Speaker 6: of flood of lawsuits. There's been then another flood wave

464
00:27:25,480 --> 00:27:29,119
Speaker 6: whatever metaphor you want to use to describe injunctions and

465
00:27:29,200 --> 00:27:32,040
Speaker 6: orders against the government, and they've been taking those up

466
00:27:32,240 --> 00:27:34,200
Speaker 6: at a much higher rate to the justices.

467
00:27:34,280 --> 00:27:34,440
Speaker 5: Now.

468
00:27:34,480 --> 00:27:39,760
Speaker 6: The criticism is that increasingly it's becoming a more commonplace

469
00:27:39,840 --> 00:27:42,639
Speaker 6: part of the legal process in a way that many

470
00:27:42,680 --> 00:27:46,280
Speaker 6: critics say it's not supposed to be. That you're sort

471
00:27:46,320 --> 00:27:49,439
Speaker 6: of skipping, leap frogging. What's supposed to happen in the

472
00:27:49,480 --> 00:27:51,720
Speaker 6: lower courts. There's supposed to be a full airing of

473
00:27:51,760 --> 00:27:54,520
Speaker 6: the facts. Judges are supposed to get some time to

474
00:27:54,560 --> 00:27:57,960
Speaker 6: really think about the full record, analyze the law, hand

475
00:27:58,000 --> 00:28:02,399
Speaker 6: down fully reasoned decisions, and then parties can ask the

476
00:28:02,440 --> 00:28:05,000
Speaker 6: Supreme Court to come in and do their own review

477
00:28:05,040 --> 00:28:08,919
Speaker 6: of this. But by going to the justices early, the

478
00:28:09,000 --> 00:28:11,159
Speaker 6: ideas that you're sort of short circuiting all of this

479
00:28:11,359 --> 00:28:14,800
Speaker 6: and there's no longer a full airing before the justices

480
00:28:14,880 --> 00:28:17,120
Speaker 6: put this sort of thumb on the scale and say, yes,

481
00:28:17,160 --> 00:28:19,720
Speaker 6: you can fire all these people even though the case

482
00:28:19,760 --> 00:28:22,640
Speaker 6: isn't over yet, or yes, you can refuse to pay

483
00:28:22,680 --> 00:28:25,399
Speaker 6: out all this money, or you can try to deport

484
00:28:25,440 --> 00:28:28,200
Speaker 6: a lot of people even though the case isn't over yet.

485
00:28:28,240 --> 00:28:30,000
Speaker 6: So that's how we got here.

486
00:28:30,520 --> 00:28:34,080
Speaker 2: One of the major criticisms is that in many of

487
00:28:34,119 --> 00:28:39,000
Speaker 2: these emergency orders, the justices have given little or no

488
00:28:39,320 --> 00:28:44,000
Speaker 2: explanation for their actions, and that's led district court judges

489
00:28:44,200 --> 00:28:48,400
Speaker 2: and even appellate court judges to reach different outcomes from

490
00:28:48,480 --> 00:28:51,440
Speaker 2: the Supreme courts, saying there's a lack of guidance from

491
00:28:51,480 --> 00:28:52,240
Speaker 2: the justices.

492
00:28:52,840 --> 00:28:56,200
Speaker 6: That's right, and there's been this sort of extraordinary dialogue

493
00:28:56,440 --> 00:29:02,760
Speaker 6: at times, disagreement, open disagreement unfolding between lower court judges

494
00:29:02,760 --> 00:29:05,840
Speaker 6: and the justices, with the Justice departments sort of serving

495
00:29:05,880 --> 00:29:10,040
Speaker 6: as the intermediary where district judges circuit judges will hand down,

496
00:29:10,280 --> 00:29:14,680
Speaker 6: you know, opinions, dozens of pages, fully analyzed, the Justice

497
00:29:14,680 --> 00:29:17,160
Speaker 6: Department gets an order from the Supreme Court. You know,

498
00:29:17,200 --> 00:29:20,560
Speaker 6: some of these are a couple sentences, a couple of paragraphs.

499
00:29:20,960 --> 00:29:24,360
Speaker 6: Sometimes they offer a reason in some summarized way, but

500
00:29:24,400 --> 00:29:27,320
Speaker 6: sometimes they don't. And then the Justice Department is taking

501
00:29:27,360 --> 00:29:29,560
Speaker 6: these and going back to lower courts and saying, see,

502
00:29:30,040 --> 00:29:32,520
Speaker 6: we one, this means the court is going to side

503
00:29:32,560 --> 00:29:35,640
Speaker 6: with us. Generally you need to back off. And lower

504
00:29:35,680 --> 00:29:37,840
Speaker 6: court judges are saying, that is not at all how

505
00:29:37,840 --> 00:29:40,440
Speaker 6: this works. It is not our job to read tea leaves.

506
00:29:40,560 --> 00:29:43,080
Speaker 6: That was a phrase one judge actually used. That it's

507
00:29:43,120 --> 00:29:46,200
Speaker 6: really not supposed to happen that way, and it's not appropriate.

508
00:29:46,320 --> 00:29:48,200
Speaker 6: Judges are saying for it to happen that way, we're

509
00:29:48,200 --> 00:29:51,480
Speaker 6: not supposed to infer what the Supreme Court wants. They're

510
00:29:51,480 --> 00:29:53,880
Speaker 6: supposed to give us precedent that we can clearly apply.

511
00:29:54,120 --> 00:29:57,080
Speaker 6: You know, last year there was sort of open disagreement

512
00:29:57,120 --> 00:30:01,600
Speaker 6: that broke out where in another round of cases, judges

513
00:30:01,640 --> 00:30:04,640
Speaker 6: were sort of not taking the approach the Justice Department wanted,

514
00:30:05,040 --> 00:30:08,560
Speaker 6: and Justice Neil Gorsich wrote openly that they're not doing

515
00:30:08,560 --> 00:30:10,760
Speaker 6: what they're supposed to do, and then lower court judges

516
00:30:10,800 --> 00:30:15,040
Speaker 6: pushed back and bristled at Justice Gorsuch's comments. I mean,

517
00:30:15,040 --> 00:30:18,680
Speaker 6: there's sort of this open disagreement, which is extraordinary to see,

518
00:30:18,960 --> 00:30:21,000
Speaker 6: and that kind of died down a bit, and now

519
00:30:21,040 --> 00:30:24,959
Speaker 6: again there's been this uptick in courts saying they just

520
00:30:25,000 --> 00:30:26,560
Speaker 6: haven't given us enough to work with.

521
00:30:26,920 --> 00:30:31,600
Speaker 2: Yeah, those exchanges were extraordinary. One area where the courts

522
00:30:31,640 --> 00:30:34,440
Speaker 2: are saying they don't have enough guidance from the Supreme

523
00:30:34,600 --> 00:30:39,719
Speaker 2: Court is in cases involving Temporary Protected Status, which allows

524
00:30:39,760 --> 00:30:44,280
Speaker 2: immigrants whose home countries are in crisis to temporarily live

525
00:30:44,440 --> 00:30:49,320
Speaker 2: and work in the US, and lawsuits challenging the administration's

526
00:30:49,400 --> 00:30:54,600
Speaker 2: efforts to revoke TPS status for migrants from several countries

527
00:30:55,120 --> 00:30:59,640
Speaker 2: has become sort of a flashpoint in this criticism of

528
00:30:59,680 --> 00:31:02,479
Speaker 2: the urgency docket. How do we get here?

529
00:31:03,040 --> 00:31:03,160
Speaker 4: So?

530
00:31:03,840 --> 00:31:08,720
Speaker 6: Last year, the Homeland Security Secretary Christine Nome began rolling

531
00:31:08,760 --> 00:31:13,560
Speaker 6: out announcements that they were terminating temporary protected status for

532
00:31:13,680 --> 00:31:16,720
Speaker 6: a number of countries. I think it's something like seventeen

533
00:31:16,840 --> 00:31:20,200
Speaker 6: at the start of twenty twenty five had tps, and

534
00:31:20,840 --> 00:31:24,040
Speaker 6: to date I think it's thirteen where Nome has announced

535
00:31:24,120 --> 00:31:28,120
Speaker 6: they're terminating the status. But the challengers say that there's

536
00:31:28,200 --> 00:31:32,120
Speaker 6: administrative steps that she's not following. The other argument and

537
00:31:32,200 --> 00:31:36,480
Speaker 6: allegation is that whatever reasons this administration is giving is

538
00:31:36,520 --> 00:31:40,280
Speaker 6: actually pretextual, and that it is because these are people

539
00:31:40,400 --> 00:31:43,600
Speaker 6: from parts of the world or people from ethnic backgrounds

540
00:31:44,120 --> 00:31:47,000
Speaker 6: that this administration does not want in the United States,

541
00:31:47,120 --> 00:31:51,680
Speaker 6: and that there is a discriminatory, a hostile purpose behind

542
00:31:51,680 --> 00:31:55,720
Speaker 6: these cancelations that violates the rights of these migrants. And

543
00:31:55,760 --> 00:31:58,920
Speaker 6: we've had some judges finding that they think the evidence

544
00:31:58,960 --> 00:32:02,320
Speaker 6: does support those allegations, as well as finding that just

545
00:32:02,600 --> 00:32:05,960
Speaker 6: process wise, they've gone about this in an unlawful way.

546
00:32:06,240 --> 00:32:10,880
Speaker 6: So as terminations were announced, lawsuits hit the docket. We've

547
00:32:10,920 --> 00:32:15,720
Speaker 6: had lower courts, mostly although not exclusively, siding with challengers,

548
00:32:16,000 --> 00:32:20,880
Speaker 6: granting preliminary injunctions stopping these terminations from taking effect. Going

549
00:32:20,960 --> 00:32:24,640
Speaker 6: up on appeal appeals courts often affirming what the lower

550
00:32:24,680 --> 00:32:27,880
Speaker 6: courts have done, but what's been sort of fascinating about

551
00:32:27,920 --> 00:32:31,240
Speaker 6: these cases is there's been two times the Supreme Court

552
00:32:31,240 --> 00:32:33,800
Speaker 6: has weighed in in a case involving Venezuelan's and both

553
00:32:33,880 --> 00:32:36,920
Speaker 6: times they sided with the government and said, yes, you

554
00:32:36,960 --> 00:32:40,280
Speaker 6: can go ahead with terminating their status. And after both

555
00:32:40,360 --> 00:32:44,120
Speaker 6: of those orders, lower courts in large parts said like,

556
00:32:44,200 --> 00:32:47,240
Speaker 6: this does not apply to me. There was no reasoning here.

557
00:32:47,840 --> 00:32:50,840
Speaker 6: Venezuela is a different country from the country that I'm

558
00:32:50,880 --> 00:32:54,120
Speaker 6: looking at, and without the justices telling me, you know,

559
00:32:54,560 --> 00:32:58,280
Speaker 6: here's the reasoning that should apply more broadly, we're not

560
00:32:58,440 --> 00:33:01,680
Speaker 6: going to back off. And so the issue is now

561
00:33:01,840 --> 00:33:03,080
Speaker 6: back before the Justices.

562
00:33:03,560 --> 00:33:07,640
Speaker 2: This time it's about the administration wanting to revoke temporary

563
00:33:07,680 --> 00:33:11,880
Speaker 2: protected status for about three hundred and fifty thousand Haitians

564
00:33:11,960 --> 00:33:16,600
Speaker 2: and Syrians, again on an emergency basis, and this time

565
00:33:16,680 --> 00:33:20,440
Speaker 2: they added a request for a full review of the cases.

566
00:33:21,080 --> 00:33:24,880
Speaker 2: So basically, we're doing this on the emergency docket, but

567
00:33:24,960 --> 00:33:27,360
Speaker 2: we want you to handle it as if it were

568
00:33:27,400 --> 00:33:28,680
Speaker 2: on the regular docket.

569
00:33:29,000 --> 00:33:32,520
Speaker 6: It's quite unusual. Everything about this is quite unusual. And

570
00:33:33,120 --> 00:33:36,440
Speaker 6: you know what we saw was the court this time

571
00:33:36,680 --> 00:33:40,360
Speaker 6: saying we are not going to immediately intervene here there

572
00:33:40,440 --> 00:33:44,280
Speaker 6: was an ask by the Justice Department to lift the

573
00:33:44,320 --> 00:33:48,440
Speaker 6: lower court rulings now while the case goes forward, which

574
00:33:48,560 --> 00:33:53,120
Speaker 6: would effectively put the Haitians and Syrians on the table

575
00:33:53,200 --> 00:33:57,320
Speaker 6: for potential detention and deportation. So Justice has said this time,

576
00:33:57,480 --> 00:33:59,640
Speaker 6: we're not going to take that approach. We're going to

577
00:33:59,680 --> 00:34:01,920
Speaker 6: hold up off here for now. But in a very

578
00:34:02,040 --> 00:34:04,960
Speaker 6: unusual move, they did say yes, we will skip the

579
00:34:05,000 --> 00:34:07,320
Speaker 6: rest of the proceedings in the Circuit court and we

580
00:34:07,400 --> 00:34:09,960
Speaker 6: will take this up on the merits. They are going

581
00:34:10,040 --> 00:34:13,080
Speaker 6: to have arguments in April. So the government got some

582
00:34:13,160 --> 00:34:15,920
Speaker 6: of what it wanted here. This is certainly fast tracking it.

583
00:34:16,280 --> 00:34:18,960
Speaker 6: This is not what the challengers wanted. They wanted to

584
00:34:19,040 --> 00:34:22,919
Speaker 6: let the circuit courts complete their process, you know, give

585
00:34:23,040 --> 00:34:26,360
Speaker 6: fully reasoned opinions, and then if the government wanted to

586
00:34:26,360 --> 00:34:28,880
Speaker 6: take this up they could. But at a minimum, it

587
00:34:28,960 --> 00:34:31,839
Speaker 6: does seem to be the court saying we are going

588
00:34:31,880 --> 00:34:34,120
Speaker 6: to give you reasons here that even if they do

589
00:34:34,239 --> 00:34:36,480
Speaker 6: end up siding with the government, they're going to do

590
00:34:36,520 --> 00:34:39,600
Speaker 6: it in some ways. At least that looks more like

591
00:34:39,840 --> 00:34:44,040
Speaker 6: normal process that lower courts can then turn to to say, okay,

592
00:34:44,239 --> 00:34:46,600
Speaker 6: this is the precedent this is what they're telling us

593
00:34:46,640 --> 00:34:48,000
Speaker 6: to do, Zoe.

594
00:34:48,120 --> 00:34:51,360
Speaker 2: There was an unusual amikus or friend of the court

595
00:34:51,400 --> 00:34:56,359
Speaker 2: brief signed by former state and federal judges, both Republican

596
00:34:56,440 --> 00:35:01,520
Speaker 2: appointees and Democratic appointees, urging and justice is to let

597
00:35:01,560 --> 00:35:05,840
Speaker 2: the full legal process play out before intervening. Do you

598
00:35:05,840 --> 00:35:07,720
Speaker 2: think that influenced the justices.

599
00:35:08,320 --> 00:35:12,960
Speaker 6: The order that they handed down doesn't explain sorting keeping

600
00:35:13,000 --> 00:35:16,800
Speaker 6: with the prize surprise. It didn't explain why they decided

601
00:35:16,800 --> 00:35:18,799
Speaker 6: to take the approach that they did this time. So

602
00:35:19,040 --> 00:35:21,920
Speaker 6: you know, they didn't say, we heard your complaints and

603
00:35:21,960 --> 00:35:24,080
Speaker 6: so we're going to go to the merits instead of

604
00:35:24,160 --> 00:35:26,719
Speaker 6: ruling on the emergency docket. They didn't say that, you know,

605
00:35:26,760 --> 00:35:29,360
Speaker 6: so we don't know what was in their heads that said.

606
00:35:29,480 --> 00:35:32,120
Speaker 6: What we know is what's happened, which is they have

607
00:35:32,200 --> 00:35:35,080
Speaker 6: a record of lower courts really talking to them through

608
00:35:35,120 --> 00:35:37,960
Speaker 6: opinions saying you need to give us more. You know,

609
00:35:38,040 --> 00:35:41,000
Speaker 6: if you want us to let the government terminate TPS,

610
00:35:41,440 --> 00:35:43,279
Speaker 6: you need to tell us why in a way that

611
00:35:43,320 --> 00:35:45,359
Speaker 6: we can apply. So there's a record of that, and

612
00:35:45,719 --> 00:35:48,640
Speaker 6: you have this friend of court brief signed by more

613
00:35:48,680 --> 00:35:51,919
Speaker 6: than one hundred and seventy five former federal and state

614
00:35:52,000 --> 00:35:55,680
Speaker 6: judges coming to the defense of lower courts here and saying,

615
00:35:56,360 --> 00:35:59,080
Speaker 6: you know, it's really not fair to accuse them of

616
00:35:59,160 --> 00:36:02,560
Speaker 6: doing something wrong. This is about the legitimacy of the

617
00:36:02,560 --> 00:36:05,640
Speaker 6: Supreme Court. More broadly, that if you want the public

618
00:36:05,840 --> 00:36:08,920
Speaker 6: and the rest of the courts to take seriously and

619
00:36:09,000 --> 00:36:10,960
Speaker 6: respect the work that the Supreme Court is doing, that

620
00:36:11,000 --> 00:36:13,239
Speaker 6: they need to slow down and show their work. And

621
00:36:13,520 --> 00:36:17,120
Speaker 6: this past year, I think because there's been this escalation

622
00:36:17,280 --> 00:36:22,120
Speaker 6: of attacks coming from the President directly, coming from other officials,

623
00:36:22,200 --> 00:36:27,520
Speaker 6: coming from conservative allies, really attacking sometimes judges by name

624
00:36:27,560 --> 00:36:31,520
Speaker 6: who have ruled against this administration, making comments that question

625
00:36:31,640 --> 00:36:34,279
Speaker 6: the integrity of what the lower courts do and the

626
00:36:34,320 --> 00:36:38,080
Speaker 6: work of judges. There's been this outpouring of support coming

627
00:36:38,160 --> 00:36:42,400
Speaker 6: from former judges. Occasionally we have sitting judges speaking up,

628
00:36:42,400 --> 00:36:45,040
Speaker 6: which is one of the most extraordinary if we're going

629
00:36:45,120 --> 00:36:46,880
Speaker 6: to make a list of extraordinary things, here, one of

630
00:36:46,920 --> 00:36:49,759
Speaker 6: the most extraordinary things that we've seen. You know, the

631
00:36:49,800 --> 00:36:54,360
Speaker 6: consequences for TPS holders, for them, the stakes are extremely high.

632
00:36:54,560 --> 00:36:55,960
Speaker 6: So there is on the one hand, you know, the

633
00:36:56,040 --> 00:36:59,080
Speaker 6: high human stakes for the people involved here. I think

634
00:36:59,320 --> 00:37:02,520
Speaker 6: also a lot of people see these types of cases

635
00:37:02,600 --> 00:37:06,480
Speaker 6: as high stakes for the role the judiciary plays and

636
00:37:07,000 --> 00:37:10,040
Speaker 6: the credibility and legitimacy of the work that the courts

637
00:37:10,080 --> 00:37:13,960
Speaker 6: do and whether they can function as a robust check

638
00:37:14,200 --> 00:37:15,240
Speaker 6: on the other branches.

639
00:37:15,760 --> 00:37:18,799
Speaker 2: And with the expedited schedule, we'll find out how the

640
00:37:19,080 --> 00:37:23,160
Speaker 2: justices think by July. Thanks so much, Zoe. That's Bloomberg

641
00:37:23,239 --> 00:37:26,279
Speaker 2: Legal Reporter Zoe Tillman, and that's it for this edition

642
00:37:26,320 --> 00:37:28,960
Speaker 2: of The Bloomberg Law Show. Remember you can always get

643
00:37:28,960 --> 00:37:32,120
Speaker 2: the latest legal news on our Bloomberg Law podcast. You

644
00:37:32,160 --> 00:37:36,239
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

645
00:37:36,360 --> 00:37:40,640
Speaker 2: dot Bloomberg dot com, slash podcast slash Law, and remember

646
00:37:40,680 --> 00:37:43,640
Speaker 2: to tune into The Bloomberg Law Show every weeknight at

647
00:37:43,640 --> 00:37:47,120
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648
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