Graduation Year

2026

Date of Submission

4-2026

Document Type

Open Access Senior Thesis

Degree Name

Bachelor of Arts

Department

Philosophy, Politics, and Economics (PPE)

Reader 1

Paul Hurley

Rights Information

© 2026 Katherine E Schwab

Abstract

This thesis argues that the Supreme Court is producing a structural crisis in rule-of-law adjudication through three converging mechanisms: the expanded use of the shadow docket, the cynical appropriation of precedent, and the dominance of strict originalism. Each independently undermines the conditions that distinguish legitimate governance from the mere exercise of coercive power. Together, they replace the general, stable, publicly intelligible norms the rule of law requires with the successive pronouncements of whoever currently holds interpretive power.

The thesis develops its argument in three stages. First, drawing on Antonin Scalia's account of rule-like precedent and Jeremy Waldron's layered theory of stare decisis, it establishes the normative foundations of rule-of-law adjudication -- why the backward-looking obligation to carry forward prior courts' articulated norms is a structural requirement of legality rather than judicial courtesy. Second, it applies that framework to the Court's current practice, analyzing the shadow docket as a mechanism that severs outcomes from reasoning, and examining the 2025 emergency stay in Noem v. Perdomo as a case study in which all three forms of erosion converge. Justice Kavanaugh's concurrence exemplifies cynical precedent appropriation; Justice Sotomayor's dissent models principled reasoning from inside a live case. Third, the thesis argues that strict originalism structurally displaces the backward-looking obligation that makes precedent binding, reproducing the same erosion through a more theoretically respectable mechanism.

The thesis concludes by tracing three implications for legitimate governance: the undermining of separation of powers, the erosion of counter-majoritarian safeguards, and -- drawing on Tommie Shelby -- the threat to the threshold of tolerable injustice below which civic obligation becomes unintelligible.

Download

Share

COinS