The Supreme Court Footnote: A Surprising History

In this accessible account, historian Hoffer (Clio Among the Muses) ventures into the crowded history of the Supreme Court via a novel approach: the court’s use of footnotes. He demonstrates that justices have often turned footnotes into powerful tools that offer insights into the court’s opinions not found in the main text. Some have provided the foundational reasoning for an opinion, like footnote 11 in Brown v. Board of Education, which quoted studies that showed “separate but equal” schools for Black and white children damaged Black children and were therefore actually unequal. Others are notable for having appeared in obscure cases but created new, groundbreaking law, like the influential footnote four in U.S. v. Carolene Products, which provided the rationale for the court to apply a stricter standard of scrutiny when weighing the constitutionality of potentially racially discriminatory legislation. More recently, footnotes have become a means for justices to wage ideological battle; in their opposing opinions in Dobbs v. Jackson, Justice Samuel Alito weaponized footnotes, according to Hoffer, by quoting sources out of context and otherwise distorting the record, while Justice Elena Kagan’s footnotes attempted to influence future cases. Hoffer’s prose is elegant and entertaining (“Where in American law did [Horace] Gray find permission to plant Justinian in a Supreme Court opinion? Nowhere. He simply did it”). This is essential for dedicated court watchers and a fascinating new perspective for casual readers. (June)