Professor Bryant on Constitutional Forbearance
In the fourth installment of the Spring 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor A. Christopher Bryant, Professor of Law at the University of Cincinnati College of Law, came to speak yesterday about his working paper, Constitutional Forbearance.
Professor Bryant defines constitutional forbearance as when a Judge or Justice concludes that her policy preference conflict with what the Constitution requires and she then rules in conformity with the latter, in disregard of the former. By doing so, she offers herself as living proof that constitutional law is not just politics by other means. Professor Bryant argues that in heavily publicized and politicized cases, judges should consciously exercise forbearance. He notes that of the five judges that have heard cases regarding the Patient Protection and Affordable Care Act, they have all ruled along party lines, 3-2. If the Roberts Court does the same, it will vote 5-4, against the Act. These cases, therefore, present an opportunity for constitutional forbearance. Professor Bryant calls on the Supreme Court to exercise constitutional forbearance as an example of self-restraint to improve our constitutional jurisprudence.
Professor Bryant’s thoughts started a healthy discussion from members of the faculty who attended. We thank Prof. Bryant for presenting his ideas.