It [i.e., the Supreme Court] must look to the Constitution, be it with a large or small C, written or unwritten (or both), for it is the constitution of a society which represents the fundamental allocation of competences within that society. It is in its constitution that a society comes to terms with the homely truth that every decision must finally be taken on the managerial, prudential, particularistic judgment of somebody, and yet very few decisions indeed may be left to the judgment of everybody at once. It is in the constitution that a society recognizes that everyone is in principle capable of the Olympian view, and yet in fact most persons will differ when they take it. The Constitution, in short, is a necessary, prudential arrangement for the allocation of competences to take a prudential view. And a court, no less than anyone else, will fail to respect the prudence of the Constitution, if it ignores the limitations on its own scope for making prudential judgments.
Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court’s Balancing Test, 76 Harv. L. Rev. 755, 772 (1963).
