"Yet there is another image of precedent, of law’s history, in which the force of precedent compels judgment, in which precedent is treated as a rule for foreclosing the possibility of any other legitimate considerations. This image is perhaps best exemplified in Justice Marshall’s dissent in Payne v. Tennessee. In Payne the Supreme Court overruled its earlier decision in Botth v. Maryland in order to hold that the use of so-called victim impact statements in the sentencing phase of capital trials was not a violation of the eighth Amendment. The majority opinion written by Justice Rehnquist explained its overruling of Booth by invoking attitude toward precedent that would later emerge in Casey to justify adhering to precedent. As Rehnquist put it, “Adherence to precedent is ‘usually the wise policy.’” It is not, Rehnquist warned, a “mechanical formula” of adherence to the latest decision no matter how misguided. Marshall responded by conjuring a different relationship of law’s present to its past. He called for “fidelity” to precedent and claimed such fidelity was essential if courts were not to subject the people to the rule of “an arbitrary discretion.” In his view the Court has “a duty to stand by its own precedents.” Discharging that duty, against the ties of changing personnel on the Court or a changing political climate in the country, was Marshall claimed, necessary to a judiciary that sought to be a “source of impersonal and reasoned judgments.” The history that Marshall constructed is a history in which the past should rule the present, in which authority could and should be excavated from a continuous process of reading and rereading of the judiciary’s own products. It is a history of “fidelity,” of “duty” in the face of temptation. Failing to follow precedent would mean that “power, not reason,” would be the currency of judicial decision making."