Can Judges Be Uncivilly Obedient

Abstract

In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed because even hyper-formalist legal opinions, they argued, would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when observed in non-judicial actors. In this article, I argue that judicial uncivil obedience is possible, discuss examples of lower court uncivil obedience to U.S. Supreme Court decisions, speculate why uncivil obedience might be a particularly attractive form of dissent by inferior courts in a hierarchical judicial system, and argue that my examples satisfy Bulman-Pozen and Pozen’s criteria. In addition, I argue that the constraints on uncivil obedience they identify, which can limit the opportunity for its exercise, have analogues that likewise limit the ability of judges to engage in uncivil obedience.