CAN JUDGES BE UNCIVILLY OBEDIENT?

• Author: Denning, Brannon P.

TABLE OF CONTENTS INTRODUCTION 5 I. UNCIVIL OBEDIENCE IN A NUTSHELL 9 A. Uncivil Obedience in Theory and Practice 9 B. The Criteria for Uncivil Obedience 10 1. Conscientiousness 11 2. Communicativeness 11 3. Reformist Intent 11 4. Legality 12 5. Legal Provocation 12 C. Skepticism About Judicial Uncivil Obedience 13 II. LOOKING FOR UNCIVIL OBEDIENCE IN THE LOWER COURTS 14 A. Possible Examples of Judicial Uncivil Obedience 14 1. The Commerce Clause 15 a. United States v. McCoy 16 b. United States v. Stewart 19 c. Raich v. Ashcroft 91 2. The Anti-Commandeering Principle 23 3. Affirmative Action 26 4. The Second Amendment 29 B. Supreme Court Reaction 33 1. The Commerce Clause 33 2. The Anti-Commandeering Principle 35 3. Affirmative Action 36 4. The Second Amendment 37 III. THE CASE FOR THE EXISTENCE OF JUDICIAL UNCIVIL OBEDIENCE 38 A. Why Uncivil Obedience Might Be Particularly Attractive to Judges 39 B. Uncivil Obedience: A Second Look at the Criteria 41 1. Legality 41 2. Conscientiousness and Reformist Intent 43 3. Communicativeness 46 4. Legal Provocation 47 a. Violation of Unofficial Norms 48 b. Departure from Self-Interest 49 c. Self-Conscious Hypertechnical Legality 52 C. Why Isn't Judicial Uncivil Obedience More Common? 53 1. Systemic Constraints on Uncivil Obedience 54 2. Systemic Constraints on Judicial Uncivil Obedience 56 CONCLUSION 58 INTRODUCTION

Suppose that you are a lower court judge who thinks that a recent Supreme Court decision would produce a number of undesirable consequences if its reasoning were pushed to its logical limits. Your response might be to read the decision narrowly, perhaps nearly confining it to its facts until clear signals are sent from the Court that it is serious. That has tended to be lower courts'--especially courts of appeals'--response to salient, potentially broad and deep decisions like United States v. Lopez.'

In other words, you might react just as Fourth Circuit Judge J. Harvie Wilkinson III reacted to District of Columbia v. Heller. (2) Judge Wilkinson was an early critic of Heller, not only criticizing the Court's opinion, (3) but also predicting that lower courts would face a rash of suits that would force them to fill in the gaps in the Court's decision. (4) As a sitting judge, Wilkinson has warned his colleagues to say no more than necessary when applying Heller. (5)

Another tactic, however, would be to ignore any limiting signals furnished by the Court and apply its decision in a way that takes its logic, and the principles it seems to announce, at face value. You could, then, do what Judge Richard Posner--a vociferous critic of Heller himself--did when he wrote a decision extending Heller's holding by ruling that Illinois's total ban on the concealed carrying of weapons was unconstitutional. (6) The logic of Heller, Judge Posner argued, could not be confined to the possession of weapons in the home. (7) The reasoning employed by the Court, he argued, mandated that the right to armed self-defense be accorded to those who experienced confrontations in public, too. (8) It is difficult to imagine Judge Wilkinson joining such an opinion, much less writing it.

One might chalk up the differences in the treatment of Heller by Judges Posner and Wilkinson to the discretion that lower courts use when implementing Supreme Court decisions. Scholars continue to undermine the traditional hierarchical view of federal courts, wherein the Supreme Court issues decisions that lower courts dutifully and faithfully implement. (9) Recent scholarship has highlighted numerous ways in which lower courts possess and exercise discretion when it comes to interpreting and applying those decisions. (10) In particular areas, it appears that lower courts read potentially far-reaching decisions narrowly, with an eye to limiting their impact. (11) Given the almost negligible chance of the Court granting certiorari in and reversing any one case, lower courts--appeals courts in particular--have significant amounts of discretion to exercise with something approaching impunity. (12) A recent article by Richard Re, for example, argues that "lower courts have a substantial interpretative gray zone available to them" in which they may "legitimately narrow Supreme Court precedent by adopting a reasonable reading of it." (13) Lower courts may even engage in "partial overruling," which "occurs when a court accepts that a precedent already covers the relevant legal terrain but then trumps the precedent in whole or in part by establishing a new legal rule." (14)

Neil Siegel recently highlighted how lower courts and the Supreme Court can work in tandem to expand constitutional principles that are tentatively, and perhaps narrowly, enunciated by the Court. (16) In what he terms "reciprocal legitimation," the lower courts extend Supreme Court decisions, and the Court then ratifies those extensions in a later opinion. (16) In a recent example of the phenomenon, Siegel argues that Obergefell v. Hodges (11) was made possible after lower courts took up the Court's invitation in United States v. Windsor (18) to use Windsor's due process and equal protection analysis to strike down state same-sex marriage bans. (19) The Court then ratified the lower courts' analyses in Obergefell. (20) He argued that the Court in Obergefell "seemed to be trying to legitimate its controversial conclusion in part by portraying federal court decisions concerning same-sex marriage as if they were entirely independent of its decision in Windsor, when in all likelihood they were not." (21)

In this Article, I seek to add to this literature by exploring the possibility that lower courts can also press the logic of Supreme Court opinions to their limits, applying them in potentially far-reaching and disruptive ways with a view to critiquing them and perhaps affecting the future direction of Supreme Court doctrine. (22) I further argue that when courts do so, they are engaging in a form of what Jessica Bulman-Pozen and David Pozen termed "uncivil obedience." (23) As they define it, "uncivil obedience" is:

[A] deliberate, normatively motivated act or coordinated set of acts... that communicates criticism of a law or policy... with a significant purpose of changing or disrupting that law or policy... in conformity with all applicable positive law... in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied. (24) While uncivil obedience takes many forms and can be undertaken by a variety of public and private actors, Bulman-Pozen and Pozen are skeptical that a judicial variety exists. (25 ) I argue here that it does and that Bulman-Pozen and Pozen were too quick to dismiss the possibility that uncivil obedience is a tactic available to lower court judges. Potential examples, I argue, are found in lower court applications of recent landmark Supreme Court decisions. (26)

Part I briefly describes Bulman-Pozen and Pozen's theory of uncivil obedience, its criteria, limits on its exercise, and why they doubt that judges could be true uncivil obedients. Part II then offers several examples of lower court opinions that, I argue in Part III, satisfy Bulman-Pozen and Pozen's criteria for uncivil obedience. While lower courts often engage in uncivil obedience in order to force the Supreme Court to limit prior, potentially far-reaching decisions, it is also possible that courts do so seeking to expand the scope of an earlier decision whose reach or effect on prior cases is unclear but whose principle is one with which the majority is in sympathy. In either case, the lower courts are engaged in a critique of present or past Supreme Court doctrine. Part III also offers reasons why uncivil obedience might be particularly appealing to lower court judges, as well as why the technique is not more commonly employed by lower courts. A brief conclusion follows. (27)

1. UNCIVIL OBEDIENCE IN A NUTSHELL

   This Part summarizes Bulman-Pozen and Pozen's theory of uncivil obedience. (28) In addition to its definition and a summary of its criteria, I highlight why they are skeptical that judges can be uncivilly obedient.

   A. Uncivil Obedience in Theory and Practice

   Intentionally violating a law to bring attention to the law's immorality or injustice and produce change, what is commonly referred to as "civil disobedience," is a familiar technique of activists. (29) And yet, there is some feeling that civil disobedience is becoming "increasingly irrelevant" because "guarantees of fundamental freedoms and equal treatment have been extended to more and more members of the world's democracies." (30) Uncivil obedience, however--civil disobedience's "legalistic doppleganger"--is, Bulman-Pozen and Pozen argue, an increasingly commonplace and popular factor in American politics. (3) ' From the generally accepted elements of civil disobedience--conscientiousness, communicativeness, reformist intent, illegality, and legal provocation (32)--they construct the definition of uncivil obedience quoted in the Introduction. (33) Instead of defiance of a law in order to draw attention to its injustice, at the heart of uncivil obedience is private or public actors' unstinting and to-the-letter compliance with the law. (34) Yet the motive is the same in both: critiquing the status quo with a view towards reform.

   Examples abound. One Bulman-Pozen and Pozen offer is a 1993 incident in which a group of California motorists drove precisely fifty-five miles an hour on the freeway in an attempt to challenge the fifty-five miles-per-hour speed limit. (35) Another example is that of employees "[w]orking to rule": "do[ing] exactly what they are told to do, adher[ing] exactly to safety protocols, or report[ing] to and depart[ing] from the premises exactly on time." (36) Bulman-Pozen and Pozen also cite as examples public defenders who insist on jury trials for all of their clients, (37) Teddy...