In The Supreme Court Footnote§ §A Surprising History (NYU Press June 2024) (yes, the title has a footnote), University of Georgia Professor Peter Charles Hoffer provides a history of the most famous and infamous footnotes in U.S. Supreme Court opinions, focusing on their significance and the ways they have shaped legal thinking. Hoffer argues that these seemingly minor annotations, often overlooked by the public, play a crucial role in shaping legal precedent, influencing future decisions, and reflecting the ideological leanings of the justices.
The book spans 222 pages comprising an introduction followed by eight numbered chapters, each focused on a specific case, followed by a short conclusion and four appendixes. The introduction notes that although Chief Justice Charles Evans Hughes reputedly bellowed that he would "not be bound by a footnote," he went on to play a role in the most famous Supreme Court footnote of all (footnote 4 in Carolene Products, discussed below). The introduction also discusses the origins of footnotes generally, and in legal writing in particular, illustrating their evolution and increasing prominence in legal discourse. Footnotes present an opportunity to change tone and consider tangential points, and therefore can become "downright entertaining, even fascinating."
Hoffer emphasizes that footnotes can reveal much about the Supreme Court's internal dynamics and its relationship with society and the law. For instance, in recent years, scholarship on the infamous Dred Scott v. Sandford, 60 U.S. 393 (1857) (discussed in chapter 2), in which the Court held that enslaved people were not citizens and could not sue in federal court, has focused on the racial politics at play - and for good reason because racism played a significant role in the decision. However, the six footnotes across three of the justices' opinions revealed that the justices were less concerned with questions of citizenship and race relations and more concerned about federalism and Congress' ability to legislate the slavery issue in the new territories.
Hoffer also illustrates how justices have used footnotes to subtly advocate for innovative readings of the law. In this regard, footnotes can serve as a means of conveying subtle messages, signaling disagreement, or clarifying ambiguities in the law without altering the formal judgment. For instance, in the little-known case of Viterbo v. Friedlander, 120 U.S. 707 (1887) (discussed in chapter 3), Justice Horace Gray included a series of footnotes (in French!) pushing for the adoption of foreign laws to resolve a dispute centered on a flooded sugar plantation in Louisiana. The central issue in Viterbo was a choice-of-law question: Whether federal common law or Louisiana law applied. To resolve that question, Justice Gray traced Louisiana common law to its roots back in the days of French colonialism. But Justice Gray then went a step further - in the footnotes - and advocated for a more expansive reading of the French civil law, one predicated on ancient Roman principles. In so doing, Justice Gray subtly expanded the choice-of-law analysis through scholarship and ancient Roman sources cited solely in footnotes.
Beyond the doctrinal effect of footnotes, Hoffer explains how footnotes have been used to signal shifts in judicial philosophy. For instance, in Muller v. Oregon, 208 U.S. 412 (1908) (discussed in chapter 4), the case that introduced the world to the Brandeis Brief, Justice David Brewer wrote the majority opinion upholding an Oregon statute limiting work hours for women. This deviated from Justice Brewer's decision in Lochner v. New York, where he voted with the majority to strike down a similar hours-restriction law applicable to bakers in New York. How to explain this shift in opinion? In a footnote, Justice Brewer cited extensively from Louis Brandeis' amicus brief of social studies chronicling the deleterious effects on women's health of working long hours. This footnote, therefore, explained sotto voce the shift in philosophy.
Turning to arguably the most famous footnote in constitutional law, footnote four in United States v. Carolene Products, 304 U.S. 144 (1938) (discussed in chapter 5), Hoffer explains the vast implications of Justice Harlan Fiske Stone's "discrete and insular minorities." According to Hoffer, the footnote laid the groundwork for strict scrutiny review and was part of Justice Stone's larger philosophy that substantive due process should be based on democratic empowerment and not property rights. The Carolene Products footnote serves as another example of a justice gradually nudging his judicial philosophy along through strategic use of footnotes.
Moving from one famous footnote to another, Hoffer delves into footnote 11 in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (discussed in chapter 6), which has been the subject of much academic debate and scholarship. Hoffer explains that the footnote was not unique insofar as it cited social studies detailing the harmful effects of segregation on Black children. Indeed, the Brandeis brief discussed above was among the first examples of the high court adopting social science in a footnote. But footnote 11 is perhaps the most consequential use of social science to overturn precedent in Supreme Court history. Part of Chief Justice Earl Warren's challenge was overcoming the "separate but equal" doctrine announced in Plessy v. Ferguson, and footnote 11 was instrumental in that regard - it "served to bridge the chasm between past and future" on the question of segregation. The above-the-line text is sparse, with footnote 11 doing all the heavy lifting.
Having explored the historical use of footnotes, in chapter 7, Hoffer ushers the reader into contemporary Supreme Court jurisprudence with his discussion of District of Columbia v. Heller, 554 U.S. 570 (2008). Hoffer explains that originalism, an effort to interpret the Constitution by resort to historical research, had been growing in the latter half of the 20th century. The chief advocate of originalism, Justice Antonin Scalia, wrote for the Heller majority that the Second Amendment conferred an individual right to bear arms not contingent on membership in a militia. Relying on historical sources scattered throughout the opinion in footnotes, Justice Scalia created a "supernova of originalist analysis," as Hoffer terms the opinion.
Hoffer's final case study, in chapter 8, takes the reader on a tour through the flurry of footnotes in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), the case that overturned Roe v. Wade and eliminated abortion as a constitutionally protected right. The majority opinion in Dobbs, authored by Justice Samuel Alito, had the burden of explaining why the Court was deviating from decades of precedent. Hoffer explains that Justice Alito enlisted the footnotes to explain why the majority was dispensing with stare decisis in this particular case. According to Hoffer, "when the court overturns a long line of precedent, the footnote has even more work to do, because the opinion must cut loose from an established line of precedent and create a new one." And that is precisely what the record number of footnotes in Dobbs - 117 in just the majority opinion - accomplished.
Hoffer concludes the book by reflecting on the evolution of the footnote in Supreme Court opinions and observing that "the lowly footnote has been elevated to a higher plane." For Hoffer, the footnote has proven to be a "conversation with the justice ... addressed to the community of legal scholars" offering a glimpse into the conversations behind closed chambers doors and planting the seeds for future discourse or even wider scale adoption of certain ideas.
Having now reviewed momentous footnotes with enormous consequences on American law, we return home to California. The oeuvre of California appellate opinions has its own famous footnote: footnote 2 in People v. Arno, 90 Cal.App.3d 505, 514 (1979), appearing at the very end of the majority opinion by Justice Robert Thompson (joined by Justice Mildred Lillie), at that time in Division One of the Second District Court of Appeal. In Arno, the majority reversed a conviction for possession of obscene films based on unlawful police surveillance that used binoculars to peer into the Playboy building on Sunset Boulevard. Justice L. Thaxton Hanson wrote a long (45 page!) dissent, which accused the majority opinion of being "somewhat unclear," containing
"contradictory statements," and either misapplying the law or ignoring controlling precedent. Id. at 536 (Hanson, J., dissenting). The majority responded to the dissent with footnote 2, which began: "We feel compelled by the nature of the attack in the dissenting opinion to spell out a response:" (emphasis added) followed by seven numbered sentences, each starting on a new line. The capitalized initial letters of each sentence, read vertically from top to bottom, spell out the word "S-C-H-M-U-C-K."
The jab did not go unnoticed. The L.A. Times Legal Affairs Writer picked it up, pointing out the "Yiddish vulgarism" that means a contemptible foolish person or jerk - but that also references an appendage of male anatomy. Gene Blake, An Insulting Decision? Court Justices Deliberate for a Spell, L.A. Times p. 8 (March 13, 1979) (note the pun regarding "spell"). After this public attention, Justice Thompson modified footnote 2, adding citations to a German dictionary and to a dissenting opinion by U.S. Supreme Court Justice William O. Douglas. In response, Justice Hanson modified his dissent to add a footnote 14 to highlight the L.A. Times story and to "decry the lack of propriety, collegiality and judicial temperament displayed in footnote 2." Id. at 538 (Hanson, J., dissenting).
In requesting rehearing, the City Attorney noted the "somewhat questionable taste" of footnote 2. See Elaine Woo, Former Appellate Judge and 11-Year Professor at USC, L.A. Times obituary for Justice Thompson. (Oct. 7, 2009) (noting the footnote as an example of his sense of humor, "which was not universally appreciated").
Justice Thompson later said he had "no serious regrets" about the footnote and only lamented that it was "misunderstood" - because it (he said) was not meant to characterize Justice Hanson, but rather to show that a word can have varying meanings. See Roger M. Grace, Div. One: A Court of Appeal Division With a Tradition of Tomfoolery, Metropolitan News-Enterprise (Jan. 3, 2002). Although footnote 2 of Arno cannot be said to have changed the course of jurisprudence, it has, at least, become legendary among California practitioners. And, for what it's worth, it made the list of Hall of Fame Cases on LawHaHa.com. See Judicial Civility Spelled "S.C.H.M.U.C.K." (Nov. 6, 2011).
Reprinted with permission from Daily Journal.
