Ellingburg v. United States · ¶46

The modern framework is also convoluted. It is difficult for courts, let alone ordinary citizens, to predict how this Court will weigh the modern framework's combined twelve factors spread over two tests. This Court's own precedents admit that the twelve factors are “neither exhaustive nor dispositive,” United States v. Ward, 448 U. S. 242, 249 (1980), and need not be given equal weights, Smith, 538 U. S., at 105. Such “multifactor balancing test[s]” invite “policydriven, `arbitrary discretion.' ” Gamble v. United States, 587 U. S. 678, 724 (2019) (Thomas, J., concurring). We should strive to avoid such unclear rules in any context, but especially when interpreting a constitutional guarantee of clear notice.

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