Reasons for Failure
As detailed in the last chapter, the Court has failed to produce adequate doctrine. However, contrary to most commentators who operate, as does the Court, on a case-by-case basis, I do not attribute the failings of the system to a series of poorly decided cases by the Supreme Court. Rather it is the thesis of this book that, because of the nature of the judicial process, no Supreme Court, no matter how competent and regardless of its political leanings, could have done much better. The only blame that should attach to the Court is for failing to realize its limitations. Why is the Supreme Court incapable of declaring adequate criminal procedure doctrine? There are two reasons, uncertainty and incompleteness.
There is an uncertainty principle * that operates on Supreme Court decisions such that any attempt to resolve an issue of constitutional law will tend to create more uncertainty than it resolves. The process of rendering a decision will tend to distort the issue decided as well as the precedents upon which that decision is based.1
Justice Brennan recognized how the majority was doing this in his dissenting opinion in Oregon v. Elstad:2____________________