Mnotho Ngcobo (University of Louisville – Louis D. Brandeis School of Law) has posted How Judicial Independence Enables Constitutional Fidelity on SSRN. Here is the abstract:
Judicial independence is commonly defended as insulation from political pressure, but that account leaves unanswered a more fundamental question: independent for what purpose. This Article argues that judicial independence is best understood as instrumental to constitutional fidelity. Judges hold their office in trust for the Constitution and owe a primary legal obligation to uphold constitutional principles, even when doing so creates tension with hierarchical authority. That obligation does not ordinarily authorize defiance of precedent. Instead, it is most often discharged through a disciplined and familiar interpretive practice: narrowing from below. Drawing on fiduciary theory, constitutional text and structure, and Lon Fuller’s jurisprudence of law’s internal morality, this Article explains why narrowing from below is not an aberration or a form of disguised defiance, but a central mechanism through which constitutional fidelity operates within a hierarchical judicial system. When lower courts confront precedents that appear constitutionally strained but not manifestly unconstitutional, their fiduciary duty is not to apply those precedents in their most expansive form. Rather, fidelity requires minimizing constitutional harm while remaining within institutional constraints through narrow interpretation, careful distinction, transparent reasoning, and invitation of review. The Article further demonstrates that this practice depends critically on structural judicial independence. Life tenure and salary protection provide judges with the security necessary to engage in narrowing from below despite political pressure, reputational risk, and the possibility of reversal. Through doctrinal analysis and case studies from Fourth Amendment law, automobile search doctrine, and Second Amendment jurisprudence, the Article shows how independent judges narrow precedent in ways that facilitate constitutional dialogue, doctrinal development, and eventual Supreme Court clarification. Finally, the Article addresses concerns that recognizing judges’ duty of constitutional fidelity would undermine vertical stare decisis or invite judicial chaos. It shows instead that hierarchy and fidelity are reconciled through graduated, procedurally constrained responses, with open resistance reserved for the rare case of manifest constitutional contradiction. Properly understood, judicial independence does not empower judges to disregard precedent at will. It enables them to do what the Constitution requires within a hierarchical system: interpret precedent faithfully, narrow it when warranted, and preserve the integrity of constitutional governance over time.