Given the seriousness of current events (some of which are described in the Morning Reads), we thought it might be healthy to offer a lighter Closer Look. And so we turn to: footnotes.
If you ever find yourself in a room full of litigators (given you’re a SCOTUSblog reader, you likely know one or two), and want some decent conversation, bring up this topic. Even the justices disagree on what to do with “those pesky footnotes.” (In fact, there’s an entire book, The Supreme Court Footnote: A Surprising History, that purports to cover “[a] history of the humble footnote and its impact on the highest court in the land.”)
Interestingly, heavy footnote usage is relatively new to the court, with a steep increase in density over the 20th century. Indeed, Justices Oliver Wendell Holmes, Jr. and Benjamin Cardozo wrote without any dependence on footnotes, and Chief Justice Charles Evans Hughes reportedly said (but never wrote) “I will not be bound by a footnote.”
Some, but not all, more recent justices have claimed to be on the same page. Justice Lewis F. Powell Jr. once wrote a memo to his law clerks asking them to avoid long, heavily footnoted opinions: “[A] frequent and justified criticism of this Court is that opinions are too long and – like many law review articles and notes – are overburdened with footnotes.” Likewise, Justice Arthur Goldberg said that footnotes “cause more problems than they solve.” When President Bill Clinton nominated Justice Stephen Breyer to the Supreme Court in 1994, Breyer echoed Goldberg’s advice to him as his clerk (“Clear writing, he always told me, reflects clear thinking, and it makes legal opinions accessible and understandable, not just to the lawyers but to all the people whom they touch. And so today, I will make this public promise to Justice Goldberg: No footnotes. Or as few as possible.”). Breyer kept his promise.
Another footnote-skeptic could be found in Justice Sandra Day O’Connor. A former law clerk for the justice once wrote simply: “Justice O’Connor doesn’t like footnotes in her opinion,” and added that this “was a bracing lesson for a young lawyer fresh from a law review where a legion of footnotes, packed with authorities and afterthoughts, marched halfway up almost every page.” After he wrote his first memo, O’Connor apparently told the clerk, “If you have something to say, just say it. Don’t weasel around down in the brush.” O’Connor seems to have followed her own advice – her majority opinions averaged 474 footnoted words, a good deal lower than her colleagues (the average in opinions of all the justices being 1,811).
Perhaps Justice Ruth Bader Ginsburg put it best, calling for “opinions that both get it right, and keep it tight, without undue digressions or decorations.”
Oh, and for those keeping score: Although we previously noted that the longest majority opinion is Buckley v. Valeo, if one focuses only on footnotes, the 1961 opinion of McGowan v. Maryland (on the legality of certain “Sunday closing laws” or “Blue laws”) is the clear winner, with 17,197 footnoted words that constitute nearly 41% of the opinion’s overall length. The main culprit: Justice Felix Frankfurter, with an impressive 143 of them.