Abstract
This Article introduces Procedural Drift, a new theory of constitutional erosion in which legality itself enables democratic decline. Legal forms remain intact, but their constraining force quietly recedes as procedural doctrines withdraw courts from sites of contestation. Executive power expands not by defying law, but by strategically complying with it—exploiting judicial restraint to evade review.
Building on Bruce Ackerman’s theory of constitutional moments and Kim Lane Scheppele’s concept of autocratic legalism, this Article develops a U.S.-specific account of democratic backsliding that is lawful, gradual, and institutionally embedded. It traces how judicial restraint—operating amid partisan alignment and epistemic fragmentation—erodes legal checks while preserving the appearance of constraint.
The Article makes two core contributions. First, it identifies Procedural Drift as the structural logic through which doctrines like standing, stare decisis, and interpretive formalism quietly weaken courts’ ability to check power. Second, it offers a framework for understanding how this logic deepens over time, as institutional abstention becomes both normalized and self-reinforcing.
Through close analysis of recent Roberts Court decisions, the Article shows how procedural doctrines commonly treated as neutral operate instead as instruments of drift. These doctrinal patterns are not anomalies, but structural adaptations in a system where form masks aggrandizement.
Procedural Drift reframes constitutional theory around a core paradox: law’s fidelity to form can accelerate its loss of function. It speaks to constitutional theorists, public law scholars, institutional reformers, and jurists confronting the limits of law as constraint—offering both diagnosis and roadmap for resisting democratic erosion.
Recommended Citation
Dessie Otachliska, Procedural Drift: How Judicial Restraint Enables Legalized Backsliding, 83 Wash. & Lee L. Rev. 573 (2026).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol83/iss2/4
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