The law is too slow. It's like a horse carriage in the age of twitter. Why can't they expedite for special cases? Not even defending Antropic or any company. Just that if a tweet can cause damage in seconds, the law shouldn't be too far behind.
To a certain extent this exists, but given that SCOTUS has been stacked with GOPers…
> The shadow docket is a break from ordinary procedure. Such cases receive very limited briefings and are typically decided a week or less after an application is filed. The process generally results in short, unsigned rulings. In contrast, merits cases take months, include extensive briefing and public oral argument, and result in lengthy written opinions detailing the reasoning of the majority and of any concurring and dissenting justices.
It's not unusual that the "shadow docket" orders have limited briefings when the extent of the ruling/order is usually procedural, as opposed to ruling on the merits of the case.
It should be noted any justice can write a dissent in a "shadow docket" ruling. If a justice finds a ruling incorrect, nothing hides their criticism of it from the light.
The problem is that the rationale is hidden, not that criticism of it is hidden. If the Supreme Court doesn't explain why they make momentous, weighty decisions, that leaves the rest of us with only speculation, both in understanding how the decision should be applied to other cases and evaluating whether the decision made any sense at all.
(I agree that there's nothing fundamentally wrong with the even more recent trend of shadow docket decisions that do come with opinions attached, and perhaps law students in the 2030s will learn about the "expedited docket" as a normal way to handle cases.)
This mechanism means that regardless of how awful the Trump admin proposal one SCOTUS justice can "temporarily" unblock it giving no reason at all, and then the "real" merits case can be slow-walked.
Slow-walked, conveniently, until the admin has finished doing whatever the original lawsuit claimed was illegal, and then the government argues it is impossible to undo after the fact.
Absolutely nothing about how the Supreme Court works nowadays has respect for standard process or decorum. It's merely a shield to hide behind when it's convenient, to be ignored when it's useful.
I was trying to avoid editorializing by just stating facts that demonstrate the process is beyond some issue of reigning in lower courts and is instead leveraged by politicians to achieve their goals.
I can also editorialize.
In my view, Trump is leveraging the shadow docket to get decisions over turned by members of his own party who don't need to provide detailed (or any) explanations as to why or information about who voted for what.
It indicates one of two things: either the orange fuhrer is being sabotaged and having to defend himself, or that he's doing blatantly illegal things and even a court stacked in his favour by him is trying to reign him in.
SCOTUS is not stacked with justices who are just GOPers. There are lots of Republicans who absolutely value the rule of law in this country!
The SCOTUS is stacked with reactionaries, people that want to take us back in history. They quite literally undid 60 years of civil rights legislation!
This is not a Democrat vs. Republican thing, this is is a very small minority that has taken control of an entire branch of government and is abusing their power.
Mostly, the law is not creating the right incentives. In this case in particular, I don't think it's so much a matter of speed: I suspect the current US admin would still sow the chaos they do to the same degree if it was ruled illegal within a week instead of within months.
You're right: the current administration would find a way because they don't care what the law says. The law, to them, is a system to be hacked when necessary.
Many Americans take for granted the idea that the US is a "nation of laws" and that "rule of law" governs above all else. But the reality is this: there is no such thing as a perfect legal system.
You can have a strong legal system by design (good oversight, various checks and balances, etc.) but in practice, any system is only as good as the most powerful people are decent and respectful of it.
If you have someone in the most powerful position (the executive) who doesn't respect the law and who isn't willing to, with wisdom in his or her heart, exercise restraint with the understanding that protecting the integrity of the system is ultimately more important than getting your way, the law stands no chance.
>Many Americans take for granted the idea that the US is a "nation of laws" and that "rule of law" governs above all else. But the reality is this: there is no such thing as a perfect legal system.
This is a dying vestige of the greatest generation who passed it onto their boomer kids who blindly believed it despite evidince to the contrary. We're moving back toward a late 19th and early 20th century understanding of how government and laws work.
An interesting feature of Trump 2.0 is that his party has essentially entirely keeled over.
Presidents are not historically all powerful within their own parties and the nature of the big tent systems means usually it is fairly difficult to get agreement on everything within a party without some compromise. Trump has managed to defang everybody else in the GOP.
This is true but every recent president has expanded powers, and had their party agree. Due to my age, I first noticed it with Bush then when Obama continued it, it felt weird to be fine with allowing more power in the executive branch when it’s someone you support, because that’ll add to the precedent for the next person who you don’t support. The presidency has come a long way since Washington and Trump 2.0 is a clear result / continuation of what’s been happening for as long as I’ve been paying attention.
Exactly. People forget things like Obama signing a law into existence that allows for the indefinite detention of Americans without trial or charge if you claim they're connected to terrorism. [1] As far as I know that law has not yet been used. However that leads to two issues. (1) It could be at any time. The current issues with Israel are rife for abuse to the point that I'm somewhat surprised it hasn't yet been used.
And (2) if the law hasn't been used then WTF did we even consider signing it into power, let alone actually doing it? Something like this should never be done, but if done one would think it would only be in the face of an imminent and urgent need. Instead we seemed to have just casually signed unconstitutional executive tyranny into power 'just in case.'
The only way we're ever going to reign in executive power is if one party or the other starts rolling back executive power while they're in power. But when people are in power they seem to convince themselves that it will always be like this, and so when it comes to power all they can say is 'more, more, more.'
Realistically speaking, it is also because the nature of law and society has changed since the Constitution was drafted. Congress is not set up with so many experts in all the fields of society and cannot literally line by line specify all the regulations pertaining to, say, aviation.
> An interesting feature of Trump 2.0 is that his party has essentially entirely keeled over.
The people who called it a cult were basically right. Trump has overwhelming control over republican voters and has proven he can easily end the careers of republican politicians who oppose him. I do not recall a single politician of either party in my lifetime who has held this level of uncritical support.
It will be fascinating to see what happens when his grip on the party is removed. None of the current crop of potential successors appears to have even remotely the right kind of support to maintain the coalition. That does not seem surprising, he cannot really abide having someone close to him who looks like a powerful successor because he would see it as a threat. So he will anoint a weakling and the base will fracture.
> So he will anoint a weakling and the base will fracture.
Prediction: he will never anoint anyone. He is pathologically incapable of stepping aside, sharing, or caring one iota of what happens to anyone after he dies. He may not even be capable of conceptualizing his own mortality.
There's also the benefit of following the strategy the Democrats as a larger party have followed since at least George W. Bush. Let someone stupider or bolder break a system that's hampering you, and then just never fix it because it benefits you. Disregard that with it broken your opponent can, will, and does cause more harm to everyone. We've been in a cycle of one side smashing whatever makes them upset at the moment, and then the other side just walking over the shards now that they don't have to detour around it.
For "no fangs" there are an awful lot of people around (or dead) with GOP bite marks these days.
The SAVE act status probably has more to do with some Republican legislators who think it will harm their re-election chances by impacting their own supporters.
What on earth are you talking about? Trump invaded multiple American cities. He created an $85 billion federal goon force. He's kidnapped or killed TWO DIFFERENT heads of state. He's destroyed our trade relationships. He's taken inflation from frustrating to existential. He's bulldozing national parks. He's started a brand spanking new forever war. He's utterly corrupted the Supreme Court. He's multiplied the national deficit and debt. He's cut taxes for only the richest. He let Elon tear our institutions to shreds, costing infinitely more money than he "saved" in the process. Our entire federal science and research apparatus is gone. Effing measles is back and killing people. Screw worm is back. Air traffic is falling apart. Trump and his family have made tens of billions.
It is going to take literal decades, if it is even possible at all, to repair the damage Trump has done in 18 months.
> He let Elon tear our institutions to shreds, costing infinitely more money...
...and lives. Musk is now up there as one of the individuals with the highest kill counts in history - at least 500,000 to 700,000 so far. Analysis suggests that by 2030, this could reach as many as 14 million, including 4.5 million children under age 5. Musk is going to have to come up with his own salute, because he's no longer playing second fiddle to that other guy.
The harder problem is designing remedies that make illegal government action actually expensive enough to discourage it, without also making officials afraid to make legitimate decisions.
Yeah, god forbid they drive right down the middle of the lane rather than drive right up to the line of what the public will tolerate.
There is a direct causative line between government actors feeling like they can get away with unpopular things and the populist politics we've had brewing in this country for the past 20yr. The tea party, the Bernie bros the ron paul era libertarians, even MAGA, they were all ultimately captured by the establishment.
The establishment wielding progressive (lowercase p) types would do well to understand that on some level you, the peddlers of government, must cater to the demands of the people, because if you don't eventually the pressure will build until a populist movement you cannot contain comes around and stomps you. And what that could look like is a serious power transfer away from the feds and toward the states. So if your policy goals involve people in other states, which just about all progressives do, this would be bad for you.
Which is to say turn down the damn heat on the frog, this is all happening because you're going too fast.
> if your policy goals involve people in other states, which just about all progressives do
That does not seem like a feature unique to progressives? Conservatives are trying explicitly to involve other states, they'd happily put us all under the thumb of a Evangelical theocracy if they had the power to do so.
Those jerks in NC to cram Christian values down everyone's throat via the federal government are no different than the jerks in CA who think that if they have to suffer through a low flow shower head some guy in Alton Missouri ought to as well. They're all progressives. We can debate the merits of the directions in which they seek to progress but they're both progressives on a fundamental level. They're seeking to use government to shape society, to what they think is everyone's benefit but in reality that's not so clear.
The whole thing. I spend way too much time in the politics/political-philosophy rabbit hole, and it still whooshed right by me. I bet you got like a 2% hit rate on people understanding what you meant.
The part where you gave the word your own private meaning was the unclear part. There are no two sides to "progressive". It means thinking the past was bad and that we can make a better, fairer society in the future. Those who think society was better in the past and think the 1950s or even the 1850s or even earlier were the Golden Age aren't progressive upper or lower case. They are regressive by definition.
All of it, apparently, I've never heard the term progressive used to describe conservatives. I gather that you don't like the divergence between the dictionary definition and the practical one? That's valid, but in a discussion it helps to use terms in the most commonly accepted way to avoid that confusion. I don't think modern conservatives are very conservative at all, but I have to stick with the terminology other people understand.
Agreed. There's little doubt the admin knew they'd lose in court before they did it but they also knew it would still hurt Anthropic and make an example showing what happens to "any vendor who tries to put restrictions on the DoW's use of their product."
From recalled beef, to contaminated greens, to the cancer that is twitter, you will forever remember this period of your life as the dreaded... "age of shitter"
In the age of "Twitter"? Why Twitter specifically, not the internet or social media? I honestly feel like Twitter is losing relevance. I learned about it from TikTok for what its worth, and then read more about it here on HN. I've never understood why people put Twitter on a pedestal that I feel it doesn't deserve. Though aside from that your point stands and I totally agree with you. In reality people's/companies' constitutional rights can be infringed easily and the courts take months or even years to stop said infringement.
That's why the exploit of a social media savvy government is to overflow the system with so much slop (literally and figuratively) the law can never catch up. Your bug is their feature.
Basically lie so much and so fast that the fact checkers can't keep up. It also helps when their voter base literally couldn't care less about "truth".
Gish gallop is a name that came from an opponent of the strategy, and refers to a localized usage of the strategy within one argument. Flooding the zone is what the people who are doing the strategy call it when they do it globally.
You are right and yet I continue to be impressed by a court system that can deliver judgment in 3 months whereas in the Netherlands nothing happens in under a year and complex cases always last more than five.
It's less slow in countries that aren't extremely litigious and backed up with frivolous cases, underfunded in staff, with excessive penalties and racial profiling causing overflows of cases and convictions for minor offenses, resulting in the world's largest prison population and the world's most backed up legal system.
They do. It's called a preliminary injunction, which Anthropic obtained back in March. And this current decision is "summary judgement" which is another way to expedite a court case.
Such an injunction is granted when a party can show they have "irreparable harm" if not for the injunction and would likely succeed on the merits of the case.
> Anthropic has submitted concrete, non-speculative evidence of the ongoing harms to its liberty interests. Within days, many large enterprise customers signaled that publicly doing business with Anthropic over competitors was not worth it. (Dkt. No. 6-4 ¶ 16.) Three government contractor customers terminated their contracts with Anthropic, or were instructed to do so by Defendants; three deals valued at over $180 million fell apart despite being on the verge of closing; potential partners demanded additional protective contractual provisions such as
unilateral termination; customers asked to cut short their contracts or reduced their amount, in some instances specifically mentioning the Challenged Actions; and others switched from Claude to competing generative AI tools. (Dkt. No. 6-4 ¶¶ 11–19; Dkt. No. 6-3 ¶ 33.) Anthropic’s Chief Financial Officer, Krishna Rao, projects that, depending on how broadly Anthropic’s customers interpret the Challenged Actions, Anthropic could lose between hundreds of millions and multiple billions of dollars in 2026 revenue. (Dkt. No. 6-5 ¶ 6.) Moreover,
Defendants do not contest that Anthropic will be unable to obtain compensatory relief from the government, making its economic harm likely irreparable. E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 677 (9th Cir. 2021); California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018).
The current decision discussed in the article was also expedited since it is Anthropic winning a motion for summary judgement.
That is, before a trial even happens to assess who is correct about a factual dispute, parties are allowed to try to win entirely on legal grounds. The judge assumes everything the United States alleges is true, then sees if Anthropic would win anyways.
From the current decision:
> Under the APA, an agency action must be set aside and held unlawful if it is “arbitrary, capricious, an abuse of discretion,” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D). Anthropic has shown that the Hegseth Directive and the Supply Chain Designation were in excess of statutory authority, contrary to law, and arbitrary and capricious.
Anthropic would estimate (and provide justification of) how much lost income (and perhaps brand equity, opportunity cost, etc.) it suffered as a result of the government's actions, and the judge would consider it and decide.
Courts do this stuff all the time. Meta was just fined $18B for making their services addictive, and failing on purpose to keep kids away. That number is entirely made up.
How it works is that the complainant makes an argument with an amount attached, the argument is reviewed and discussed by all parties, and the judge decides. The law system is amazingly free-form in some respects, which is why precedent is so important: there's not much else constraining things.
Generally, one side would come up with their idea of the number and state their reasoning, the other side would do the same, and the judge looks at their reasoning and decides what makes sense.
This requires a lot of work to estimate and reason and argue and adjudicate, you're not going to get a napkin math answer on an internet forum.
They can, the preliminary injunction is a thing that can be invoked very quickly to stop actions before the law decides.
Anthropic didn't suffer any irreparable harm and they're free to seek damages if they wish, but they won't because it doesn't really matter to them. This whole mess has just been advertising that has kept them in the headlines and very likely has been more beneficial than harmful.
This is a fast paced business environment where one company being explicitly disallowed by the government could create long-lasting damage. How many institutions might have gone with the safer OpenAI and will not revisit the decision?
I'm pretty convinced Anthropic was intentionally antagonizing the government in order to get high level attention, media coverage, and government contacts to hep "fix" the problem. Far from irreparable harm it was a marketing stunt.
A lot of folks here are misreading “irreparable harm,” which means “something that cannot be fixed with money later.” Even if this somehow screwed Anthropic so badly that they lost the AI race and Dario was relegated to the permanent underclass, that is an injury which could in theory be compensated with money - a jaw-dropping quantity of money, but money nonetheless. Irreparable harm can never be fixed even with infinite money. For example, if you think you’re the rightful owner of a piece of real estate, and someone else tries to sell it to a third party, you are faced with the prospect of irreparable harm: all the money in the world can’t FORCE the buyer to sell it back to you if the transaction goes through, and a piece of real estate is completely unique and non-fungible (at least in the eyes of the law), so no amount of money could get you the same thing.
Edit to add: Anthropic did show a risk of irreparable harm because their opponent is the government, and the government typically can’t be forced to pay damages (subject to limited statutory exceptions).
Factually wrong. Many people on defense contracted projects (you can find at least a few of those in every big company you have heard of) are banned from using Anthropic models. They need to use GPT, Gemini or something else. That is a LOT of business lost.
I don’t know how you can say that. Anthropic’s reputation was destroyed by this, and A LOT of business deals happened before this injustice was corrected.
You sure they didn't lose governmental contracts because of it?
Also, the current administration doesn't care much about the law but what Trump and his people like and dislike. They made it very clear that they don't like Anthropic, so they won't get any contracts now, this ruling doesn't really matter until Trump is out of office.
None of this provable, of course.
They even fired people for investigating the storm on the Capitol. The message was pretty clear: we don't care about the law or what your job is, if you do something we dislike we retaliate, so you better become corrupt and stop caring as well or quit now on your own terms.
It was outright illegal to contract them after they were officially declared a risk. Afterwards it was clear that the highest level administration doesn't want them being contracted, an administration that's known to fire people that are only doing their job.
So being in the news for such things surely didn't help.
