Popular writing about the Supreme Court focuses on the content of the complex rules that the Court fashions for deciding cases.  Conservatives criticize them for favoring the left, liberals for not doing so enough.  Far too few citizens notice the most conspicuous feature of the situation, which is not which way these intricately complex rules lean, but the sheer fact of their intricate complexity.

A few distinctions aid precision, but a thousand distinctions destroy precision.  Suppose, for example, the Court says that the constitutionality of a law depends on whether it correctly balances the interests of the plaintiffs against community standards, whether the burden on the plaintiffs is constitutionally significant, or whether the state interests advanced by the law are compelling.  As the late Justice Scalia remarked, interests, burdens, and standards of this sort are not mentioned in the Constitution, and needless to say, the document does not contain criteria for weighting significance or compellingness.  What then do these factors mean, and what is the correct way to balance or apply them?

Not even the members of the Court know the answer to that question.  Everything depends on their respective moods at the time each case is decided.  Not only does this inevitably politicize the Court, but it also encourages disputants to litigate everything, continually returning to the Court to see what they can get away with (or what they can keep other people from getting away with) this time around.

In this way, the law of the land comes to depend less and less on legislative judgment, and more and more on judicial whims.

Admittedly, legislatures encourage this sort of thing through imprecise legislation – which amounts to passing the buck.  But few had expected, when the Constitution was new, that it would be so easy for judges to magnify their importance.