The head of the NYU law school?s Brennan Center for Justice (named for the famous Warren Court liberal Supreme Court fixture) laments in the latest Newsweek:
Here’s the core constitutional fact: a progressive president and Congress now face a conservative judiciary, for the first time since 1937. Obama’s ambitious agenda, if enacted, must go before federal courts ? where judges can rewrite or strike down key provisions.
To the extent that the judiciary can be described accurately as conservative ? and the continued role of Justice Anthony Kennedy as a ?swing vote? on the nation?s highest court seems to discredit that description ? the new administration can take one simple step to avoid judicial losses: follow the Constitution. Originalists like Justice Antonin Scalia won?t object.
