When a Company is Bigger Than its Country

Bloomberg (“The Ozempic Effect: How a Weight Loss Wonder Drug Gobbled Up an Entire Economy“):

There is no escaping Ozempic and Wegovy. The diabetes and obesity drugs are a global phenomenon. They’ve won over the rich and famous, generated billions in sales and blown open a new market for weight loss drugs, which Goldman Sachs estimates will reach $100 billion a year by 2030.

The development of semaglutide, the key ingredient in the medicines, has also transformed their maker, Novo Nordisk, into Europe’s most valuable company, with profound implications for its home country of Denmark. Novo’s market capitalization of more than $570 billion is bigger than the Danish economy. Its philanthropic foundation is now the world’s largest, with assets twice those of the Gates Foundation. The drugmaker’s income tax bill in Denmark last year was $2.3 billion, and its massive investments and heightened production helped the domestic economy expand almost 2% — more than four times the EU average. That drove record government spending on defense, the green transition and support for Ukraine.

That a drug company’s valuation is higher than Denmarks’s GDP is just staggering. Granting that Denmark is a small country whose population is roughly that of Wisconsin, it’s still the 37th largest economy on the planet by nominal GDP.

Without Novo’s contribution, the Danish economy would have stagnated.

Little in Denmark can escape Novo’s gravitational pull. Its agenda influences educational and research priorities, and politicians consider the company’s perspective before making decisions on immigration policy or new infrastructure development. The drugmaker has created thousands of jobs in the six-million-person country — and more will come as Novo expands across multiple locations — but even citizens with no ties to the firm benefit from its gains. Danish pension funds are flush from record returns on Novo shares, and mortgages are cheaper as booming diabetes drug exports have forced Denmark’s central bank to keep interest rates low.

Novo’s enormous scale in Denmark also comes with risks, both for the company and its home market. Its every move is met with media scrutiny, making it especially vulnerable to public backlash and regulatory shifts. And a strategic misstep by the company would have a trickle-down impact on public coffers, scientific research and even jobs for the next generation of Danish university graduates.

This puts Denmark in a company with petrostates and others that are dependent on a single resource. Then again, even if Novo does everything else right, it’ll lose intellectual property rights to semaglutide by the end of 2031—possibly much sooner if various challenges to its patents succeed.

While Novo can’t anticipate how its decisions might affect Denmark, Chief Executive Officer Lars Fruergaard Jorgensen said in an interview, he’s also realistic about the drugmaker’s potential impact in its home country and elsewhere. “When you have superpowers,” he said, citing Swedish children’s story Pippi Longstocking, “you have super responsibility.”

I was curious whether Spider-Man’s Uncle Ben ripped off Pippi Longstocking or vice versa. The latter character predates the former in print by almost two decades and had been translated into English for more than a decade before the publication of Amazing Fantasy #15. Then again, literally every reference to Pippi Longstocking and “super responsibility” on the Internet seems to be from this article.

Such outsized influence can be a liability in a culture where humility is so deeply rooted that an unofficial social code exists to discourage flashy displays of success. And Novo has taken measures to downplay its stature: When the company rented Copenhagen’s famed Tivoli Gardens amusement park in September for a private two-day staff party, the drugmaker asked guests not to post pictures on social media for fear of repercussions, according to local media.

And this week, following months of debate over rising public spending on Novo medication, the firm quietly reduced prices for Ozempic in Denmark by nearly a third.

For now, Novo has an almost iconic status amongst Danes — policymakers included. There is an “extreme political attentiveness” to Novo, said Christoph Houman Ellersgaard, an associate professor at the Copenhagen Business School who researches Danish elites. Yet Novo is in a delicate position. If it continues to expand, so too will the power and influence it exerts in Denmark.And if it stumbles or falls, the country’s economy and society will feel the effects.

Economists call this the “Nokia risk,” referencing the Finnish telecommunications giant whose collapse, beginning in the first decade of the 2000s, dragged down that country’s entire economy. Not only did the then-phonemaker’s decline wipe out thousands of jobs, but the ripple effects extended to Finnish universities, businesses, and the public sector, all of which relied on its success.

I suppose you’d rather have the problem than not. But, rather obviously, more diversity in the economy would be preferable.

Chad holds long-awaited presidential election set to end years of military rule

Voters in Chad headed to the polls on Monday to cast their ballot in a long delayed presidential election that is set to end three years of military rule under interim president, Mahamat Deby Itno.

Deby Itno seized power after his father who ran the country for more than three decades was killed fighting rebels in 2021. Last year, the government announced it was extending the 18-month transition for two more years, which provoked protests across the country.

There are 10 candidates on the ballot, including a woman. Some 8 million people are registered to vote, in a country of more than 17 million people, one of the poorest in the world. Analysts say Deby Itno is expected to win the vote. A leading opposition figure Yaya Dillo, the current president’s cousin, was killed in February in circumstances that remain unclear.

US TO PULL TROOPS FROM CHAD AND NIGER AS THE AFRICAN NATIONS QUESTION ITS COUNTERTERRORISM ROLE

The oil-exporting country of nearly 18 million people has not had a free-and-fair transfer of power since it became independent in 1960 after decades of French colonial rule.

Chad is seen by the U.S. and France as one of the last remaining stable allies in the vast Sahel region following military coups in Burkina Faso, Mali and Niger in recent years. The ruling juntas in all three nations have expelled French forces and turned to Russia’s mercenary units for security assistance instead.

Earlier this year, Niger’s junta ordered all U.S. troops out, meaning Washington will lose access to its key base in Agadez, the center of its counter-terrorism operations in the region. The U.S. and France still have a military presence in Chad, who consider it an especially critical partner.

The West also fears that any instability in Chad, which has absorbed over half a million refugees from Sudan, could increase the flow of illegal migrants north towards Europe.

US SAYS IT WILL RETURN TO CHAD FOR TALKS TO KEEP TROOPS IN THE COUNTRY

“These are all the reasons the West is staying relatively quiet about the democratic transition in Chad,” said Ulf Laessing, head of the Sahel program at the Konrad Adenauer Foundation. “Everybody just wants this vote to pass so Deby Itno gets elected so they continue to work with him and preserve the stability of the region,” he added.

Along with the arrival of refugees from Sudan, Chad is also dealing with high food prices partly caused by the war in Ukraine and a renewed threat from the Boko Haram insurgency spilling over from its southwestern border with Nigeria.

In March, an attack the government blamed on Boko Haram killed 7 soldiers, reviving fears of violence in the Lake Chad area after a period of peace following a successful operation launched in 2020 by the Chadian army to destroy the extremist group’s bases there. Schools, mosques and churches reopened and humanitarian organizations returned.

“For years now, we’ve had to cope with the high cost of living, without any solution,” said Adoumadji Jean, a teacher at a state secondary school in Moyen-Chari province, in an interview with The Associated Press. “We want a change this year through this election”, he added.

Boko Haram launched an insurgency more than a decade ago against Western education and seeks to establish Islamic law in Nigeria’s northeast. The insurgency has spread to West African neighbors including Cameroon, Niger and Chad.

Human rights groups have called for an investigation in to the killing of Chad’s main opposition figure, Dillo. The government has said Dillo was killed during an attack on the the National State Security Agency by his group, known as The Socialist Party Without Borders. But a photo of Dillo showed he was killed by a single bullet wound to the head.

Human Rights Watch said the killing raised serious concerns about the environment for the election .

“With his most significant opponents either co-opted or eliminated, and critical electoral institutions stacked with his supporters, Déby Itno’s victory is all but certain,” wrote Michelle Gavin for the Council of Foreign Relations, a Washington DC based think tank.

Votes will be first counted at polling stations after polls close at 5pm, but preliminary results will be announced three weeks later on May 21. If no candidate wins outright, a runoff will be held on June 5.

Click here to see original article

The ‘Outside Agitator’ Trope

I received some pushback in yesterdays’ “Campus Crackdowns Escalate ” post for my assertion

Talk of “outside agitators” is almost always a distraction. While there are indeed people who glom on to existing protests and try to egg on violence, it’s just absurd to think that this is happening at two dozen or so campuses across the country.

So let’s unpack that a bit. There’s a quotation from the late historian-activist Howard Zinn dating to 1971:

When students begin to defy established authority it often appears to besieged administrators that “someone must be behind this,” the implication being that young people are incapable of thinking or acting on their own. 

CNN’s Harmeet Kaur wrote a piece Monday “Examining the long history of the ‘outside agitator’ narrative.”

As university administrators and law enforcement crack down on campus protests over Israel’s war in Gaza, they’re invoking a familiar trope: the “outside agitator.”

[…]

In these instances, and others, authorities have not offered many specifics about who the “outside agitators” are, how significant their numbers are or how they differentiated outsiders from university-affiliated protesters.

Large-scale social movements can certainly be vulnerable to groups who seek to capitalize on the chaos for their own ends, said Aldon Morris, a professor emeritus of sociology and African American studies at Northwestern University. But time and again, authorities have leveled the broad accusation of “outside agitators” to undermine or stifle protests.

“The notion here is that student protests aren’t really legitimate because the claim is they are being taken over by outside agitators who are violent, anti-government, anti-democracy and so forth,” Morris told CNN.

The use of the term is nuanced. This time around, city officials, university administrators and supporters of the student protesters have all cited “outside agitators” as people who are trying to hijack the protests for their own means. But whether the person using the phrase is trying to quell the protests or defend them, it’s not always clear who these “outside agitators” are, and whether they can be classed as such in the first place.

“It seems to me that the ‘outside agitator’ claim is one to shift the focus away from the grievances of the students and their protest,” Morris said.

You don’t have to look far back in history to find examples of the “outside agitator” narrative.

During a speech at the height of the Black Lives Matter protests in 2020, then-President Donald Trump characterized the demonstrations occurring nationwide as being overrun with professional anarchists, violent mobs and other left-wing groups. As he spoke, police forcibly dispersed peaceful protesters outside the White House gates with tear gas, flash grenades and rubber bullets — a move that resulted in uproar and prompted a lawsuit from a coalition of civil rights groups.

While there were some reports of people with extremist ties showing up at protests, an Associated Press review of court documents published in October found that most of those who were arrested or charged at the time didn’t appear to be linked to highly organized extremist groups. Many of them, the AP found, were young adults from suburban areas that Trump had vowed to protect.

Claims of “outside agitators” — or “crisis actors,” which evoke a similar idea — also emerged during a 2018 walkout of Oklahoma teachers, in the aftermath of the Parkland school shooting earlier that year and amid the violent unrest that followed the police shooting of an 18-year-old Black man in Ferguson, Missouri in 2014.

The “outside agitator” label was also frequently evoked during the Civil Rights Movement in the 1950s and 1960s, implying that protesters participating in demonstrations were driven by the nefarious agendas of shadowy “others,” as opposed to being motivated by their own concerns.

One example is the 1964 Mississippi Summer Project, Kathleen Fitzgerald, a teaching associate professor of sociology at the University of North Carolina, explained in a 2020 interview with CNN. A group of mostly White college students who traveled from the North to Mississippi to help register Black voters and open freedom schools were dismissed by White Southerners as outsiders.

“When they use that narrative, it’s an assumption that no locals would agree with these actions and no locals are on board,” Fitzgerald said in 2020. “And that’s certainly not true.”

Indeed, there are people who travel to support causes they believe in, but that doesn’t necessarily mean there is a significant distinction between them and those who were originally protesting.

For instance, Martin Luther King Jr. and other activists in the Southern Christian Leadership Conference were often called in to assist with civil rights demonstrations across the South. In doing so, they were portrayed as outsiders stirring up trouble — a notion that King rejected.

“Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea,” he famously wrote in Letter from a Birmingham Jail. “Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

Vox’s Li Zhou had a similar piece (“The trope of ‘outside agitators’ at protests, explained“) back in June 2020.

It’s a statement that activists have heard before, used throughout history to undermine the legitimacy of protests. By framing protests as the result of “outside” influence, lawmakers are able to undercut the validity of the protest itself and question activists’ capacity for organizing such a large-scale movement. At the same time, they’re able to maintain that they actually support activists’ broader cause of combatting police violence, while cracking down on protesters.

“The idea [behind the outside agitator] is that anything that’s formidable really couldn’t be pulled off by local black activists or protesters,” Howard University law professor Justin Hansford told Vox.

The term is one that he is very familiar with: Hansford was an activist during the Ferguson, Missouri, protests in 2014 and now he runs the Thurgood Marshall Civil Rights Center at Howard.

“In Ferguson,” he said, “it was the same situation: it’s an effective tool because not only do you delegitimize the protest itself, but you also delegitimize the activists as not being skillful enough, or clever enough, to do this on their own. You play on racial tropes as well.”

It can be complicated, Hansford notes, as there are some groups and individuals who are trying to capitalize on these protests to sow chaos of their own. There have been reports, for example, of white supremacist groups taking advantage of these protests to try to impair the cause.

But Hansford characterizes these organizations as “infiltrators,” not “outside agitators,” and says there’s a key distinction: “Infiltrators” are organizations he describes as working to undermine the protest, while “outside agitators” are (in theory) given credit for amplifying it.

[…]

Outside agitator is a racial term. The term means that protests are somehow less legitimate and really run by people who are, not black, usually white people, who are not local — people who are from different parts of the country or different parts of the world.

You may have seen people talk about Russian influence recently, fomenting this discussion. There’s another group they mention, which is seen as a predominately white organization. All these groups are, whether it’s Russia, whether it’s antifa, the idea is that anything that’s formidable really couldn’t be pulled off by local black activists or protesters. That’s actually the bottom line.

So, back in Ferguson, the outside agitator [that was raised] was George Soros. There’s an idea that these were paid protesters, it’s not legitimate, they are being paid to protest. Fox News was involved in promulgating that misnomer. I used to tell people — back then, if people were getting paid checks, I was wondering where my check was, because I never got a check. Nobody I know received a check.

[…]

Hostility toward the protesting can be justified easier. Legitimate protesting based on a legitimate problem: Being hostile toward it would make you seem like a racist. This gives you grounds for being hostile toward the protest in a way you can justify it.

In the history, most people will first think about Dr. [Martin Luther King Jr]. He was said to have been influenced by communists: In the aftermath of the ’50s, the McCarthy hearings, being a communist was a really harsh character assassination. Sheriffs and segregationists throughout the South said that Dr. King was being influenced by, again, white, foreign, outside agitators, who were the ones behind the fomenting. So if it wasn’t for those outside agitators, black people could not pull off such a formidable protest. That was the other big parallel in history.

It goes back before that. It does go back to even during the [anti-slavery] movement: If there was ever any disruptions, or even rebellions, it was the same thing. The trope was just more explicit at that point: “Black people couldn’t pull this off themselves, it must be some people from the North.”

So even then, from slavery up through segregation, the outside agitator could be in the communist concepts in the ’50s, ’60s, could be Russia, and back then in the 1800s, early 1900s, Jim Crow, slavery, the outsiders were the people from the North, white people from the North, the abolitionist from the North. Those were the outside agitators, so that’s the line: From the white people in the North to people who are communists in other countries, to George Soros … to antifa and Russia.

It’s the same process that’s been handed down over generations. That’s why it resonates so much and is such an easy thing to believe for folks who think that way, because there are so many precursors.

[…]

I have seen reports also of white supremacist organizations, who wanted to use this opportunity to create some sort of mayhem, specifically something called Boogaloo. I saw that report, so remember those are two different things: The outside agitator is trying to support, at least in the trope of it. When you think about white nationalists, now you’re talking about infiltrators.

The outside agitation trope versus the infiltration idea: It’s a subtle difference, but it is very true that there have been infiltrating groups in Ferguson, and I would not be surprised if there were infiltrators in the current protests. The infiltrator idea is a group that’s trying to harm the protest by doing things that are going to hurt the protesters’ cause.

The infiltrator thing is a real thing, I think that’s a legitimate issue. We had uncovered people in Ferguson, in the southern region of the Black Panther Party, Brown Berets, Native American groups, the American Indian movement.

Indeed, there were a spate of such articles at the time.

NPR’s Code Switch , “Unmasking The ‘Outside Agitator‘”

To help us understand why we’re hearing so much about outside agitators, we talked to Professor Peniel Joseph from the University of Texas at Austin.

[…]

The whole trope of outside agitator has a long history in American history, and it’s been used by everybody from plantation owners in the South during antebellum slavery to big corporate industry magnates.

We’re thinking about the Rockefellers and the Vanderbilts and Andrew Carnegie. It’s also been used by the FBI director, J. Edgar Hoover, when talking about everybody from radicals of the early 1920s and 30s, to civil rights activists such as Martin Luther King Jr. and Malcolm X, and certainly black power activists, including the Black Panthers and Stokely Carmichael.

So in our contemporary context—especially since the Black Lives Matter movement erupted around 2013 and 2014—it’s been utilized against activists who are trying to transform the criminal justice system in the United States. Basically, what it’s meant is that whatever conflict, political rebellion or demonstration is happening, it’s not organically home grown, it’s not authentic. That none of these troubles would happen if not for outside agitators.

[…]

When we think about the 19th century during antebellum slavery, there was this idea that those who were abolitionists and pushing for the eradication of slavery were outside agitators. And for a time, labeling people that way works. It even sparks new, more repressive legislation.

In the late 19th century and early 20th century, labor struggles and labor strife was a big moment for the use of “outside agitator.” It allowed really morally reprehensible acts of violence against labor activists. We’re talking about Haymarket in Chicago. In Homestead, Pennsylvania, in the late 19th century, workers who were on strike were literally murdered by a combination of law enforcement and private security firms hired by the great industrialists of the times.

The high point of the idea being an effective tool of repression was during the start of the Cold War. In the early 1950s, there was this idea that if you were a civil rights activist, and if you were pushing for an end to racial segregation, you were a communist. You were somebody who wasn’t authentically American. You were trying to do something that was subversive and anti-American and anti-patriotic.

NYT , “The Long History of the ‘Outside Agitator’

“The notion — or rather fiction — of the ‘outside agitator’ was a persistent trope, especially during the early years of the civil rights movement,” said Thomas C. Holt, 77, a professor of African-American history at the University of Chicago who helped organize demonstrations during the 1960s.

“Part of the motivations for the charge was to sustain the myth that the locals were satisfied with things as they were,” he said, “and if you could just crack down on the outsiders, the protests would cease. As the movement grew and spread, that myth became more difficult to sustain.”

But the concept of “outside agitators” in popular protests has persisted, in part because it is rooted in some truth: Then as now, activists and leaders traveled from city to city to help organize demonstrations or mutual aid programs. Freedom riders took buses across state lines to protest segregation. The civil rights leader Martin Luther King Jr., who was from Atlanta, traveled frequently and was regularly labeled an outsider by local officials.

[…]

Recently, misinformation and conspiracy theories about the protests have flourished online. President Trump has tweeted about the influence of “the Radical Left, looters and thugs,” and threatened to use the Insurrection Act of 1807 to deploy active-duty troops against protesters.

And while there is some evidence that fringe groups have tried to discredit the movement, there is little evidence behind the suggestions from some federal officials that members of antifa — a contraction of the term “anti-fascist” that is associated with a diffuse movement of protesters who sometimes engage in techniques like vandalism — are driving the looting and violence.

In this confusing landscape, it is worth remembering how officials have used rhetoric about infiltration to justify forceful responses to popular movements, Dr. Holt said.

“There can be little doubt that the Trump administration is using the ‘outsider’ ploy much as segregationists did in the 1960s, to justify extreme measures against all of the protesters under that guise,” he said. “As then, tear gas and rubber bullets don’t distinguish between natives and visitors.”

Again, I don’t doubt that there are instances of outsiders glomming on to some of these protests to stir up trouble. Or even that there is some external coordination helping students organize. But the phrase “outside agitators” just gets my Spidey Sense tingling.

UPDATE: Swarthmore College history professor Timothy Burke had this on his Substack yesterday:

If you want to claim there are outside agitators on campus, prove it. Especially prove it if a bunch of people on your campus got arrested and you want to claim that half or more were not students, alumni, or anyone else who has a relationship to the institution. That’s not a private personnel matter, it’s not FERPA-violating, it’s none of the things that universities and colleges hide behind when they want to assert that their claims or interpretations are valid but also insist that they can’t provide evidence that confirms the validity.

If you won’t provide proof on this point, you should shut up about it, since “outside agitators” is literally the claim that every institution and government makes when facing dissent from its own constituents, usually as a cynical strategy to invalidate that dissent pre-emptively, without having to deal with its specific content. And journalists should not credulously repeat the “outside agitators” trope without independently investigating it themselves. There are people lurking around the edges of some of these protests who are deliberately stirring up shit, and they’ve been spotted in a few cases—and it’s not entirely clear that they are actually sympathizers in any way with the protests. “Outside agitators” works both ways, as anybody who has ever been part of a protest movement knows. There are people who like to “heighten the contradictions” who are not clearly left or right, but instead are basically online trolls in the flesh. But I also think that at the heart of the encampments and other protests, almost everybody is a student, an alum, or a faculty member. I’ll also point out that administrations should be able to prove this accusation in other ways than arrest records. Most of them have built huge surveillance apparatuses on their campuses, and most of them have other on-the-ground ways of keeping track of who’s who. It’s a funny thing about surveillance: it gets shared out without hesitation in legal proceedings when you’ve got the goods on someone committing a crime, but then is quite notably withheld if it doesn’t easily confirm something you want to claim about events or actions.

There’s a whole lot more from him on the protests and the crackdown at the link but that’s the entirety of his commentary on this issue.

An Observation or Two on SCOTUS

IMG_6898
Photo by SLT

I took the above photo on a trip to DC in November of 2022. Rather obviously the protest was in the wake of the Dobbs decision. While long-time readers may recall that I tend to be slow to use terms like “illegitimate” and further try to be quite precise in my application of the term (for example, a post from 2017: Will Donald Trump be a “Legitimate” President? ), I couldn’t help but think of this image as I was working on this post, which is not so much about Dobbs as it is about my growing concern about what I perceive as the Supreme Court’s lack of seriousness. And, yes, while I agree that the problem is predominantly the conservative majority, I was underwhelmed by the liberal minority’s approach to the 14th Amendment ruling.

Now, to be clear, the current Court was appointed and confirmed via legitimate means (but, yes, the whole Scalia replacement business, as well as the rush to replace Ginsburg was definitely problematic), so I am not claiming otherwise. Still, the Court is clearly behaving in ways that the general public does not appreciate, which does erode its legitimacy (given that legitimacy is both a legal and a public perception issue).

To wit via Gallup, Confidence in U.S. Supreme Court Sinks to Historic Low.

There is little doubt in my mind that the flaws in the supposedly democratic inputs into the appointment process (the Electoral College plus the Senate) coupled with the arbitrary timing of vacancies have contributed to the public sentiments reflected above (plus the current polarization and discontent in our politics). While the general public may not think much about it, or even fully understand the dynamic, the reality is that the Court has very much been shaped by minority political sentiment in the country, and so it is not surprising that the majority of citizens object to the Court’s behavior and rulings.

A key frustration that I have is that the Court pretends (and I use that word because I believe it is deliberate) like it is above partisan politics, and is simply applying legal theory to interpret texts, as wise sages do. They pretend like they are above it all and that their rulings just provide guidance for the rest of the government to follow. In the abstract, there is something to that claim. But as a practical matter, this is simply not true.

For example, it is a dodge to pretend like the legislature will fix a given issue. On the one hand, I fully understand why that not only sounds like a legitimate position but that that is a preferable way to operate. On the other, if it is obvious that the legislature is not going to address, let alone fix, the given issue then that fact has to be taken into account by the Court when it makes its decisions.

Put another way: if SCOTUS knows (and yes, they know) that providing a specific interpretation of a law will render that law moot and that Congress will not be able to address the mooting, then they are effectively legislating themselves. And, again, they know this. This is especially true when they could either defer to the existing law or make a narrow ruling. Every choice they make is just that, a choice. It is not some magical result that following rules of interpretation requires.

If my car is not working and the best solution is a part that will not be available until some unknown time in the future or there is some less perfect solution that will allow my car to function again, guess which option I will prefer?

In my own professional life, I know that there is often a solution to a problem that requires everything else in the world to operate optimally, and there is a solution that has to take into consideration that the world does not, in fact, operate optimally. As such, the sub-optimal route has to be pursued because pretending like the optimal one will eventually just happen means that there will be no solution to the problem and that other problems will proliferate as a result.

To govern otherwise is folly. And make no mistake, SCOTUS governs when it makes decisions. Further, it is part of the overall policy-making environment (see, e.g., the effects of the Dobbs decision if one needs a recent example).

To be clear: I would prefer a world in which there is an ongoing dialog between the legislature and the courts in a way that would refine and fine-tune the laws and public policy. But we have never really had such a system. Or, perhaps it would be more accurate to state that such interchanges are more rare than they are routine.

I especially find it problematic that the Court will pretend like it is just asking questions, or seeking clarification, while fully well knowing that what they are doing is overturning a law (and perhaps a policy regime) that will not be fixed by quick legislative action. I fear we are headed in such a direction when it comes to the entire basis of the US regulatory state (see SCOTUSblog, Supreme Court likely to discard Chevron ).

I find this general problem to be inherent in their approach to the immunity claims made by Donald Trump (as well as to their ruling on section 3 of the 14th Amendment, see SCOTUS Leaves Trump on Colorado Ballot ). They (and I mean mainly here the conservative majority, although as noted above, not just) can pretend like they are dealing with abstract principles and that they are above politics, but the reality is they understand, like they do with rulings on legislation, that there will be no immediate fix to the problems they create.

The lofty sentiments that they use to obfuscate their political preferences are naught but a smoke screen and belie not only partisanship but also their unwillingness to be responsible in a time of potential national crisis.

It is the lack of responsibility that frustrates me the most. An institution with the vast powers of the Supreme Court requires responsibility and seriousness if it is to operate anywhere near justly.

We know that they can try and be narrow as to their rulings. In Bush v. Gore, they played the game of “this ruling is only about now and not the future.” And yet with Trump’s immunity claims, they have decided to play the game of “we have to worry about the Big Picture and Vague Future Possibilities.” Of course, it is no coincidence that the game chosen in each case just so happens to fit the personal political preferences of the majority.

These are ongoing thoughts that I have had, but they were crystallized in recent days. And I agree with the following sentiments from Dahlia Lithwick and Mark Joseph Stern in Slate (The Last Thing This Supreme Court Could Do to Shock Us ).

For three long years, Supreme Court watchers mollified themselves (and others) with vague promises that when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6. There were promising signs: They had, after all, refused to wade into the Trumpian efforts to set aside the election results in 2020. They had, after all, hewed to a kind of sanity in batting away  Trumpist claims about presidential records (with the lone exception of Clarence Thomas, too long marinated  in the Ginni-scented Kool-Aid to be capable of surprising us, but he was just one vote). We promised ourselves that there would be  cool heads and grand bargains  and that even though the court might sometimes help Trump in small ways, it would privilege the country in the end. We kept thinking that at least for Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts , the voice of reasoned never-Trumpers might still penetrate the Fox News fog. We told ourselves that at least six justices, and maybe even seven, of the most MAGA-friendly court in history would still want to ensure that this November’s elections would not be the last in history. Political hacks they may be, but they were not lawless ones.

On Thursday, during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions.

I had hoped (and I use that word very deliberately) that the Court would be more serious than it has proven to be. I had hoped that it would have been willing to act with more alacrity than it has. Regardless of one’s views of Trump or of January 6th, it seems rather obvious that the country would be better served to have as much legal closure on those topics as possible. At a bare minimum, the extraordinary nature of the times should have resulted in expeditiousness on the part of all actors. Or, more precisely, the various courts involved should see the importance of the trial and not treat it like it is just like every other trial. The only person who wants this all slowed down is Trump, and as Ronald Brownstein in The Atlantic noted right after oral arguments, Trump Is Getting What He Wants .

At today’s hearing on Donald Trump’s claim of absolute immunity from criminal prosecution, the Republican-appointed Supreme Court majority appeared poised to give him what he most desires in the case: further delays that virtually preclude the chance that he will face a jury in his election-subversion case before the November election.

[…]

After today’s hearing, the hope that a trial could proceed expeditiously now “seems fruitless, and the question is whether the Court will issue an opinion that will provide expansive, albeit not unlimited, immunity, which would be a giant step toward rejecting the idea the president is not a king, a fundamentally anti-constitutional principle,” the former federal prosecutor Harry Litman, the host of the podcast Talking Feds, told me.

[…]

“Even if it’s pellucidly clear that the standard [for immunity] wouldn’t apply to Trump, I do think he likely would get another trip back up and down the federal courts, very likely dooming the prospect of a trial in 2024,” Litman said.

To be clear: Trump deserves due process like everyone else and, moreover, I understand that that means the right to employ favorable tactics, including trying to delay. But, the federal court system, including SCOTUS, is not required to help him do so. Moreover, given that part of the reason for Trump’s desire to delay is the election and the potentiality of being able to either end the cases by ordering DoJ to do so, self-pardoning, or some other extraordinary action should be compelling the courts to be far more expeditious than they are clearly willing to be.

These are not typical charges.

He is not a typical defendant.

The timeline and constraints thereof are unique in American jurisprudence.

The consequences of handling this all incorrectly are well beyond whatever effect they will have on Donald J. Trump, defendant.

And, I suppose, this is the point (or collective points) of this somewhat discursive post: it is a dereliction of duty for the Supreme Court in particular to have allowed this immunity issue to be used as a delaying tactic in this way (they had various options that could have sped this process up). Likewise, it is unconscionable, in my view, that the conservative majority on the Court was willing, and is likely to continue to be willing, to ignore the core reality that the question is not “one for the ages” (as Gorsuch put it) in some abstract sense concerning hypothetical presidents in the far future.

No, it is “one for the ages” in the sense that we are dealing right here, right now with a former president, and current presumptive nominee of his party, who helped foment an insurrection against the United States, and engaged in a variety of other actions (such as blatantly asking the Georgia Secretary of State to find more votes) all in furtherance of subverting election results.

To quote the McConnell speech that I noted yesterday:

A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.

It was obvious that only President Trump could end this.

Former aides publicly begged him to do so. Loyal allies frantically called the administration.

But the president did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored.

Instead, according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!

Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president.

That the man being described above has not been shunned from American politics is stunning. And yes, the Republican Party (with McConnell very much included because of his cowardice regarding impeachment, and his craven partisan blinders since that time) deserves condemnation for not exiling Trump to Mar-a-Lago.

I can’t but help view Justices Alito, Thomas, Kavanaugh, and Gorsuch (and likely Roberts) as being no different than McConnell, McCarthy, and a whole slew of their co-partisans. They are clearly making politically expedient choices that favor their partisan fellow travelers rather than looking out for the good of the country.

As Adam Sewer noted in The Atlantic (The Trumpification of the Supreme Court ):

Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.

[…]

The Supreme Court, however, does not need to accept Trump’s absurdly broad claim of immunity for him to prevail in his broader legal battle. Such a ruling might damage the image of the Court, which has already been battered by a parade of hard-right ideological rulings. But if Trump can prevail in November, delay is as good as immunity. The former president’s best chance at defeating the federal criminal charges against him is to win the election and then order the Justice Department to dump the cases. The Court could superficially rule against Trump’s immunity claim, but stall things enough to give him that more fundamental victory.

Indeed.

Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing. The incentive for an incumbent to execute a coup is simply much greater if the Supreme Court decides that the incumbent cannot be held accountable if he fails. And not just a coup, but any kind of brazen criminal behavior.

[…]

No previous president has sought to overthrow the Constitution by staying in power after losing an election. Trump is the only one, which is why these questions are being raised now. Pretending that these matters concern the powers of the presidency more broadly is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president. What the justices—and other Republican loyalists—are loath to acknowledge is that Trump is not being uniquely persecuted; he is uniquely criminal.

And this is the core of it. And since I refuse to believe that the conservatives on the Court can’t understand this (I hear tell that they have all had pretty good educations), I can only see them as willingly complicit in what is unfolding before us.

At a bare minimum, they have already chosen not to use their authority to speed this process up in a variety of ways and we may all yet suffer grave consequences as a result.

While recognizing that the ruling has not been issued, I will say that this Court is working hard to classify itself as being in a category of infamy that the Taney Court that issued the Dred Scott ruling currently occupies.