The plan creates a new rule without a test case---that devastates legitimacy and takes out solvency
Epstein 98 (Lee, Professor of Political Science and Professor of Law – Washington University, The Choices Justices Make, p. 160-161)
Additional implications of a Court operating free from a norm disfavoring issue creation are easy to develop. 1 But the general point is simple: without this norm the Court would no longer resemble a legal body in the way that scholars, attorneys, and jurists—not to mention Article 111 of the U.S. Constitution—contemplate such fora. More to the point, regular deviations from this norm would undermine the Courts legitimacy. The public believes that the Court's legitimate judicial function involves resolving the issues before it, not the creation of new issues.36 As one scholar put it, "When the parties choose issues, there is little opportunity for judges to pursue their own agendas and, as a consequence, the proceedings are not only fairer, but are perceived to be fairer," But, if the Court departs from this practice, it raises questions as to the impartiality of |its| actions, and such speculation tarnishes the Courts legitimacy. Litigant control of the issues is important to satisfy not only the parties, but society as well…When the Court [discovers] issues that the litigants have not presented, the Court erodes its credibility and trespasses on the soul of the adversarial system.'7