The Supreme Court Footnote

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito’s strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.”

Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution.

Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics. 

Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods.

During the podcast, we mentioned:

• Anthony Grafton’s The Footnote: A Curious History (Harvard, 1999)
• My NBN conversation with Laura F. Edward’s on her book (The People and their Peace), originalism and domestic violence
• The University of Kansas’s Landmark Law Series
• Peter’s book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023)
• The June 2024 recording of Justices Roberts and Alito on godliness
• Susan’s “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021)