Can Judges Be Uncivilly Obedient?

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. They were skeptical because, in their opinion, even hyper-formalist legal opinions would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when practiced by non-judicial actors. In this Article, I argue that judicial uncivil obedience is possible, discuss examples of lower court uncivil obedience to United States 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 identified by Bulman-Pozen and Pozen, which can limit the opportunity for its exercise, have analogues that likewise limit the ability of judges to engage in uncivil obedience.