Oops. Wrong Supremes. Those were the good ones. Sorry about that. I am mixing up the three Supremes with the nine.

We have to wonder (because that is all, at this time, we can do) as to how history will look not only at the second Trump presidency, but how they will look at Trump’s Supremes. Because the Republican Senate under Mitch McConnell refused even to consider President Obama’s nomination of Merrick Garland (because the nomination should belong to the future president) and rushed through the nomination of Amy Coney Barrett (because the nomination should not belong to the future president), we have a Supreme Court with a heavy conservative bias, with twice as many Justices who lean right as opposed to those who lean left. This can be seen in a number of ways, but most clearly by their rulings (those with full opinions, and those on the Court’s “shadow docket”) since Trump was elected again last November. At least, this seems apparent to me. And to virtually everyone else.

Nevertheless, Justice Barrett says that I, and all of you, just don’t understand how the members of the Court approach the law. The members of the Court, she says, do not rule in accordance with their political leanings, but simply on what the law is.  S⅕e says the Constitution is doing fine. There is certainly no constitutional crisis.

We have to respond to her, don’t we? We need to say to her: “With due respect regarding this statement (to the extent that respect is due), we must tell you that you are obviously wrong, and are either being ingenuous, or believe that we have no ability to think for ourselves, or you yourself are being deluded (or are delusional).” Simple as that.

Otherwise, why are so many cases 6-3 in favorite of government positions (or, maybe, 5-4, when the conservative voting against the government knows that their vote won’t swing the decision the other way)? Why are the three liberal justices left to their own devices, the most powerful being writing stinging dissents?

Of course, I don’t think that Justice Barrett’s position came out of nowhere. I think that the conservative members of the Court have been fooling themselves, and fooling too many of us, for a long time, by claiming that “originalism’, a legal philosophy emphasizing that decisions should be based on the meaning of the original text as seen by the composers of that original text (okay, that is my briefest of descriptions) was the theory on which the Court should base its conclusions, and – more importantly – was the theory on which they, the conservative justices, would base their own decisions.

Hogwash, balderdash and you know what else. The easiest example of the use of the term “originalist” relates to the Second Amendment, which the conservatives of the Court has given an absolutist interpretation, in spite of the more moderate treatment it had been given for the 200 years preceding the Court’s decision in the Heller case in 2008. The Court majority decided that the original interpretation of the Second Amendment would not have limited the right of citizens to have firearms to those citizens who participate in, or might participate in, a militia (that is the term used in the original text), but that the right was of an individual to have a firearm outside of that. Their conclusion was that the text used the term “militia”, only because that was the right term to use in the late 18th century, and had the Constitution been written in a different century, (earlier or later) different words would be used. (Okay, the decision doesn’t say this in so many words; I am extrapolating their reasoning.)

The four justices who voted the other way, saying that the text meant what it said (“a well regulated militia being necessary to the security of a free state…..”), saying that an individual, as individual, did not have a right to unlimited possession of “arms”, also said that they were, in this case, originalists, relying on the original language of the text.

What does this tell you? It tells you that, just like you can find support for anything you want to in the Bible, you can find support for anything you want to in the language of the Constitution. And no matter where you come out in a particular case, you can call yourself an originalist.

As I have said before, the word “originalist” is meaningless in and of itself; it is simply a cover for voting as you would like.

By the way, of course, the original case did not, I don’t think, deal with the definition of “arms”, the word used in the Second Amendment. A pistol, a rifle, an assault weapon, a tank, a land to air missile, an atomic bomb? Where does the words “arms” stop? Should it be used to include only those weapons the founders knew of at the time the Amendment was written? Or should it be modified to include weapons developed later? And, if the latter is the better answer, when does a weapon get so lethal that the Second Amendment does not protect it? Or does that ever happen? And in this case, which group – those conservatives who take a broad definition, or those liberals who would narrow the scope of the amendment – could more legitimately lay claim to deciding its position on an originalist basis?

Going back to the original question as to how history will look at this Court, I will assume it will be very, very critical.

It will criticize its partisan bent. It will criticize its kow-towing to the president and its breaking with its own precedents with regard to the limits of executive power. It will criticize its constant willingness to intervene in cases before they would reach the Court in normal order. They will criticize its continual issuance of shadow docket decisions without any written opinions. And, all of these criticisms will come before any critiques of the substance of any decisions.

As to substance, I will limit myself to one comment. I am repeating what Morgan State Professor Jason Johnson said on Ari Melber’s show last night. We have a Supreme Court that says that ICE can stop people on the street because they are speaking Spanish or look Hispanic, but a university can’t take either of those things into consideration when deciding who most needs a helping hand to be admitted to college.

Johnson says this is a constitutional crisis. He may be correct. It is certainly some kind of crisis. Some kind of supreme crisis.