God Save This Postmodern Court: The Death of Necessity and the Transformation of the Supreme Court's Overruling Rhetoric
![handle is hein.journals/ucinlr63 and id is 1129 raw text is: GOD SAVE THIS POSTMODERN COURT: THE DEATH OF
NECESSITY AND THE TRANSFORMATION OF THE
SUPREME COURT'S OVERRULING RHETORIC
Andrew M. Jacobs*
Power, not reason, is the new currency of this Court's
decisionmaking.
Justice Thurgood Marshall'
INTRODUCTION
In his biting dissent in Payne v. Tennessee,2 Justice Marshall ap-
pealed to an ideal of law as reason to criticize the Court's holding that
states may constitutionally require victim impact statements at capital
hearings, an overruling of the Court's decision only two terms before
in South Carolina v. Gathers.' The ideal invoked by Justice Mar-
shall-of law as an autonomous, apolitical realm of reason-reached
its zenith in the late nineteenth century in the writings of Dean Chris-
topher Columbus Langdell of Harvard Law School.' Langdell's ideal
of law as a science of reason has broken down generally within the law
because the postrealist legal thought of today finds unremarkable the
idea of adjudication as an exercise of largely unconstrained discretion.
The Langdellian ideal has also broken down in the area of overruling,
as partisans of both the right and left regularly inveigh against the
illegitimate overrulings of their opponents.' Thus, Justice Mar-
* Associate, Jenner & Block, Chicago. B.A., 1989, University of Illinois; J.D., 1992,
Harvard Law School. The author wishes to thank Professor Richard Parker for his encourage-
ment and Professor Duncan Kennedy for his spring 1992 course American Legal Thought,
which provoked the thoughts that led to this Article.
1. Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, J., dissenting).
2. Id. (Marshall, J., dissenting).
3. 490 U.S. 805 (1989), overruled by Payne v. Tennessee, 501 U.S. 808 (1991).
4. See generally Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983).
5. E.g., MORTON J. HORWITz, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960,
at 193 (1992) (stating that the primary legacy of legal realism was the demise of the ideal of
legal reasoning as a unique form of reasoning, distinct and autonomous from political and moral
thought).
6. E.g., Payne, 501 U.S. at 844 (Marshall, J., dissenting) (Power, not reason, is the new
currency of this Court's decisionmaking.); ROBERT H. BORK, THE TEMPTING OF AMERICA 73
(1989) ( 'Eminent scholars from many fields have commented upon [the Warren Court's] ten-
dency towards overgeneralization, the disrespect for precedent, even those of recent vintage,...
and the seeming absence of neutrality and objectivity.' (quoting Milton Handler, The Su-
preme Court and the Antitrust Laws, 1 GA. L. REV. 339, 350 (1967) (alteration in original))).
Another commentator, noting the frequency with which the Warren Court overruled constitu-
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God Save This Postmodern Court: The Death of Necessity and the Transformation of the Supreme Court's Overruling Rhetoric
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