The use footnotes has been a topic of quiet conversation around the judiciary for some time now. One group of Judges and practitioners (and an even larger percentage of students) find them to be burdensome and often unnecessary. Others think they serve as useful guides and make opinions more readable. Footnotes largely come in two varieties: citations and explanations. Citation footnotes simply cite a source that was referenced in the main text of a document and are rarely employed by the Court. The Supreme Court’s tradition of using in-text citations has, in my opinion, made opinions more difficult to read. Explanatory citations, on the other hand, provide insight into a Justices thought process or certain calculations that are surplus to understanding of the decision at hand.
Footnotes have, occasionally, caused quite a bit of controversy. In Microsoft v. AT&T (2007), Justice Ginsburg wrote a majority opinion for the court except for one footnote. The judgement line read as such:
Ginsburg, J., delivered the opinion of the Court, except as to footnote 14. Scalia, Kennedy, and Souter, JJ., joined that opinion in full. Alito, J., filed an opinion concurring as to all but footnote 14, in which Thomas and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion. Roberts, C. J., took no part in the consideration or decision of the case.
The footnote in question:
14In a footnote, Microsoft suggests that even a disk shipped from the United States, and used to install Windows directly on a foreign computer, would not give rise to liability under §271(f) if the disk were removed after installation. See Brief for Petitioner 37, n. 11; cf. post, at 2–4 (ALITO, J., concurring). We need not and do not reach that issue here.
It seems odd that Justice Ginsburg would only discuss the topic in a footnote if it was divisive enough to cause Justices to change their vote. The most famous footnote from a Supreme Court opinion is ‘Footnote 4′ from the majority opinion in US v. Carolene Products (1938). In it, Justice Stone famously hinted towards the possibility of heightened levels of scrutiny “when legislation appears on its face to be within a specific prohibition of the Constitution.”
Analysis of the modern court’s use of footnotes is difficult because most Justices do not write their own opinions. Justice Stevens is the only Justice known to write his first drafts with any frequency and he has long stated that footnotes are useful because they provide the user with ‘optional reading.’ In his majority opinion in Altria, Justice Stevens employed 14 footnotes.
I took a look at the majority and plurality opinions from OT 07 to see how frequently each Justices uses footnotes. I looked only at majority and plurality opinions because they follow the most consistent structure and length. Concurring and dissenting opinions serve different purposes and are more difficult to compare amongst one another and with other types of opinions. I also calculated the number of footnotes per page and the page count refers to Slip Pages.
|Dept. of Rev.||7-2||Souter||21||28||0.75|
|Wash. St. Gr.||7-2||Thomas||11||16||0.69|
I’ve summarized all of that into a more succinct table:
|Total FN||Total Pages||Overall P/F|
Remember that all of the Justices, except for Stevens, have their law clerks write the first draft of each opinion. With that in mind, however, I was surprised to see that Justices Kennedy and Breyer didn’t use any footnotes at all. Overall though, it seems like footnotes are a stylistic thing more than a substantive disagreement. Justices who use them tend to use them frequently and Justices who aren’t fond of them don’t use them much at all. It also doesn’t really matter which clerk writes the opinion because nearly Every Justice who uses footnotes uses them in almost ever case.
I also crunched the numbers on the average number of footnotes in opinions based on the votes in the majority. I excluded opinions written by Justices Kennedy and Breyer. Note: These numbers do not represent opinions with irregular voting blocs (ie. 5-3, 5-2, 7-1, etc)
Odd. Statistically speaking, 8-1 opinions featured the highest number of footnotes. That is likely just a result of Justice Souter writing with disproportionate frequency in 8-1 opinions this year (2 out of 5.)
Cases with the most footnotes:
Heller 5-4 Scalia 29 64 0.45
Exxon 8-0 Souter 28 42 0.67
Danforth 7-2 Stevens 24 27 0.89
New Jersey 6-2 Ginsburg 22 23 0.96
Crawford 6-3 Stevens 21 21 1.00
Dept. of Rev. 7-2 Souter 21 28 0.75
Rothgery 8-1 Souter 17 20 0.85
Kimbrough 7-2 Ginsburg 15 23 0.65
Medellin 6-3 Roberts 14 37 0.38
Meacham 8-0 Souter 14 17 0.82
These represent an interesting cross section of the Court’s cases. Of course, none of the tight 5-4 decisions issued by Justice Kennedy are featured here, but Justice Scalia’s landmark opinion in Heller leads the list. Oral arguments in Danforth lead to an unusually heated debate between the justices, literally. Medellin produced an unusual decision from the Court in which the conservative majority struck against the President and ruled that ICC judgements were not binding on state courts. Two of the other major cases decided by the Court, Kennedy (Juvenille Death Penalty) and Boumediene (Detainee habeus claims), were written by Justice Kennedy and therefore had no footnotes.