The Supreme Court Footnote

So, I always tell people that if they don't enjoy reading and they're not good at it, they won't like law school. That's because you have to read so very many opinions of such varying quality and importance in every class.
This book is fantastic because it uses a focus on how the highest court uses footnotes to illustrate how courts make decisions. The footnotes provide context that helps readers understand these opinions.
Especially now when there is so much going on with the courts, this kind of book is really helpful so that people can learn how to evaluate what they see. Courts change their minds, for reasons ranging from scientific to political to practical. Footnotes provide the background to understand the changes. Anyone could read this, and it's short and easy to understand.
Thanks to NetGalley for letting me read this

Thank you to the publisher and for NetGalley, which provided me with a free copy of this book in exchange for an unbiased review.


Everyone who has been to law school is familiar with the most famous footnote in US history—footnote 4 of the Caroline Products case. Nobody really knows, or cares, about what that case was about. But, we all know about footnote 4, since it eventually became the basis for modern day Equal Protection Clause law.

So, when I saw there was a book about Supreme Court footnotes, as a former attorney, I got curious about it. I know the story about footnote 4, but this got me wondering whether there were other footnotes in Supreme Court history that might have an interesting story attached to them. So, I decided to take a chance reading this book and I’m glad I did.

The book was divided into eight chapters, each of which covered a different Supreme Court case. I could have done without the chapter on Viterbo v. Friedlander, but that was more likely my disinterest in legal issues of that case than any fault of the author.

I did find the beginning of the book to be inconsistent. The first few half of the book of the book sometimes made me wonder whether the author just wanted to write a book on selected Supreme Court cases. The discussion of those cases were more interesting than the discussion of the footnotes. But, I was not that disappointed, since I was still enjoying the discussion of the cases (Viterbo notwithstanding). But, the book really took off once the author reached Brown v. Board of Education. That, along with the chapters on the infamous Heller and Dobbs cases were my favorite parts of the book.

I like to grade on a letter scale and this book earned an A. I thought it was headed for B at the halfway point, but the second half of the book would have gotten an A+, if judged alone, and my overall enjoyment level meant it earned its promotion up to an A. I gave books that get an A or A+ 5 stars on Goodreads and NetGalley.

As the author of a blog titled Citation Heeded, you might think that I would be a sucker for this book because of its focus on citations. You would be wrong. Instead, I am a sucker for this book due to it showing how a bunch of accomplished people can receive plaudits for their writing on history despite not being credentialed historians.

The Supreme Court Footnote is a book about the ways that the footnote has been used in Supreme Court decisions. It may not be obvious, but the Supreme Court had to discover how it wanted to use footnotes, in procedure and in custom, and nor has those methods stayed the same over time. It not only reflects the development of the norms of civil society, but the specific American take on Common Law.

The picture of the footnote here is one where Justices use it to include or address additional information and citations outside of the scope of the information on hand for the case. What that means changes as the court's judicial philosophy changes, and so the book is a review of that in time as well. And if there is a weakness here, it is how broad a spectrum that is, because what is relevant how changes as the jurisprudence changes. And what is persuasive or rhetorical changes as the jurisprudence changes.

It is mostly non-partisan, as evidenced by the somewhat technical aspect of its consideration and things like its criticism of both the majority and dissent in Heller. The exception is the treatment of the majority in Dobbs. I feel like the major flak this book will draw is that it is an excuse to dis on Justice Alito's opinion in Dobbs, but the author makes a compelling case for how the decision is flawed on its own terms, irrespective of the outcome. And the author makes a point of disclosing his own interests about critiques on it (in a footnote, naturally).

It is a short book, written clearly and with a little snark to keep it bright. The footnote game within it is on point, being more restrained in the color than some of the author's subjects, though they have a broad sweep in how much text they cover. I shouldn't like this, but I do, in it creating a better reading experience.

I worry about this book having problems finding its audience, but I recommend it to anyone with an interest in the United States' legal system or as a dissection of the process of American democracy.

My thanks to the author, Peter Charles Hoffer, for writing the book, and to the publisher, NYU Press, for making the ARC available to me.