So now we know what @scottjshapiro was REALLY up to, all those times he was light tweeting. Shame! Shame! 1/ reason.com/volokh/2021/01… 
More seriously, this is not good enough. It's true Trump's Fed Society judges did not turn out mafiosi (as Trump hoped.) But the Fed Society has been happy to make Trump their vehicle - knowing who he is and what he is likely to do. Namely, something like we saw today. 2/
If the programmers running our little simulation were devising an experiment to test whether the Federalist Society is primarily committed to the Constitution - that is, to strengthening the impartial rule of law, rather than of men ... 3/
... or whether it instead more wants to leverage 'originalism' as a vehicle for the delivery of reliable, right-wing policy outcomes from the bench, a more lab-pure touchstone test than Trump could scarcely have been devised. The Fed Soc flunked this test. 4/
You are, you say, a supporter of 'originalism'. You have the chance to go along, to get along, with a rogue, known to have no commitment to any aspect of rule of law (very much to the contrary!) but who is open to purely transactional commitment to 'originalism' as cover. 5/
Once you take the trade (he gets 'commitment to the Constitution' cover for corruption, you get your agents on the bench) - IF you take it - you are, yourself, in for a penny, in for a pound. You don't need to be down, directly, with the worst aspects of the rogue's doings. 6/
Your tacit agreement with him to make 'originalism' a transactional token in the Great Game shows what you take it to have always been: not a boundary stone, planted on behalf of impartial rule of law. No, you are happy to trade it around. So how could it be a boundary stone? 7/
But (the counter-argument will run!) 'originalism' isn't bearer bonds, held by whomever. Federalist Society judges aren't bought 'bent' (as Trump learned to his chagrin.) So am I saying that Leonard Leo is like Sauron: "But they were all of them deceived" and all that? 8/
Federalist Society judges are like 'rings of power'; ultimately they still serve the One? No. Because, hey, that could be good! Maybe the One Ring they serve is just: the Constitution! This is actually how a lot of 'originalists' think about their deal with Trump. 9/
Trump thinks he bought bent judges, but - oh, snap! Pig in poke! - he bought honest judges! Sucker! The problem is that no one who SERIOUSLY wants to keep the law, and judging, above politics, would play it like this. 10/
You get 'originalist results' if Trump appoints Federalist Society types. But no one primarily concerned with preserving the Constitution, the rule of law, would WANT results secured this way. It's a bad trade, since the damage to the law, playing along, is obviously worse. 11/
Does anyone seriously think Merrick Garland would have been responsible for any day as bad for the law as Trump today? But the response comes back: but these good 'judges are on the bench for years! Decades! Trump's gone in two weeks! It was a good trade! 12/
Well, it may be a good trade politically. You get the decisions and policies you prefer, long-term, and the Constitution - a bit tattered - stays basically intact. But the manner in which you are pulling off this trick is plainly inconsistent with your own philosophy. 13/
Originalism shouldn't be the ends-justifes-the-means view that, if you can get results you like, long term, by renting out the word 'originalism' to crooks like Trump (who need cover and think they are buying bent judges) you should rent out 'originalism'. 14/
Originalism, if it becomes a consequentialist Realpolitik bank-shot double-cross you pull on a Mafia guy, ceases to be originalism. 'Originalism' is not supposed to be a reverse-Macguffin - a real thing, pretending to be a fake, which is thereby only pretending to pretend. 15/
Think about it! 16/
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