The Surprising History of the Supreme Court Footnote

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:02 Clip: Well, when the president does it, that means that it is not illegal.

0:00:18 Clip: What's my crime? I got bold? And a little negligent? Nope!

0:00:26 Clip: Bailiffs are coming to take away my will to live. Well, one count of being a bear, and one count of being an accessory to being a bare. This is a free court!

0:00:46 Thomas: Opening Arguments. This is episode 1069. I'm your host, Thomas Smith. In a moment, I'm going to hop on over to Matt and then Matt and our guests in exactly that order. Today's episode, we have the author of a book that is just right up alley, Professor Peter Charles Hoffer, who wrote the book, The Supreme Supreme Court footnote, a surprising history. Know Matt has got a thing for footnotes, shall we say. Jump right on over to Matt. Matt, we are going to be speaking with Professor Peter Charles Hoffer. He wrote a book that I'm sure you have to keep the, a different book around it, you know, like in school, like when you're called The Supreme Court Footnote and we know your sorted history with footnotes we

0:01:24 Matt: It set the top shelf of the gas station with the paper wrapping. I am a footnote fetishist, and I will not deny it. I'm proud of it. Producer Lydia mentioned this book, and I'd never heard of it, I had not read it, and as soon as I saw the title of the book, I said, we should talk to that guy. That sounds like something I want to talk about. Then I read it and it's great. It's a fantastic read. And Hoffer is a very experienced historian. He's been doing this for more than 50 years, and he's written dozens of books. I want to read a couple more of them now. Some of them are legal histories. He covered just a really broad range of topics, but he got really into footnotes of the Supreme Court. And it's one of those great books that uses that kind in that kind of lens to look at the entire history of something. I always like that kind of thing. I'm a sucker for it.

0:02:11 Matt: And the footnotes in particular, because footnotes have evolved with the history of legal writing, academic writing, every other kind of sort of technical writing. It's something he even talks at the beginning of the book about the history of footnotes themselves, which I thought was pretty interesting, and then goes through eight different Supreme Court cases and uses them to

0:02:28 Thomas: Like they uncovered an old Sumerian ship that had some footnotes like in uh some pottery like the first footnotes oh okay well they're kind of a pain in the ass it would be a weird thing to plan especially footnote because you usually got had a plan like that, how the pages are, you know, is that the, okay. Oh boy.

0:02:32 Matt: I was surprised to learn learn they don't really go back that far. It's actually a pretty recent invention. Yeah, that's true. That's true, and

0:02:46 Thomas: This is going to be so embarrassing, Matt. And I hope we can still be friends after this. Can you explain technically what exactly a footnote is versus an end note and a top, top note and whatever note and a quarter note.

0:02:57 Matt: Headnotes. There's also headnotes. Yeah, no, so the footnotes are just for citation. So there's a pretty open debate in the legal world right now about where and when you should use footnotes, he gets into it a bit in the book too, but a legal brief, you often see cases and secondary sources and everything else just just thrown in there, just cited. So you get these big, long paragraphs where you have maybe a couple of sentences and just a lot of citations.

0:03:19 Matt: And I like I was going to say I like when it's in the footnote, when I can see it if I want to see it. But otherwise, there's a nice, clean, concise piece of text. And that is the purpose of footnotes, is to make sure that you can back up what you're saying. You can cash every check you're writing and what you're writing, but it doesn't have to be right out front and center.

0:03:19 Thomas: It's awful. You're Hmm. But only only if someone checks like, and

0:03:37 Matt: Only if someone checks, which I do.

0:03:38 Thomas: I will never check. That's the thing about like, what am I going to, oh yeah, let me dust off that other book that you're citing. Cause I have it in my library, you know? So I've always, my ADHD brain as a kid, I was always like, well, those are nothing. So I just don't even see them actually. I can't believe how different I am than you, Matt. It's, you you know, in our, in terms of our proclivities.

0:03:59 Matt: That's why this works. There is another use for footnotes, though, and it's much more interesting. You can have all kinds of interesting conversations in the footnotes. I do it all the time in my briefs, especially if you're writing a reply brief where the government has said something particularly stupid, but it's not worth in the text actually saying how stupid they are.

0:04:16 Matt: But you can drop a footnote, and for some reason, and my writing gets much sharper and more concise in footnotes.

0:04:21 Thomas: And, a and Little snarkier. Yeah it's like, it's, it' s like a business in front, party in the back almost, but, but with, you don't want to, you know I saw this a little bit with, with my forays into legal stuff where it's Like, well, okay, you, don't want to , you don' t want to show the judge that you're having a good time over here, you you know, on the main page there, you want to keep it, keep it light, but a footnote, you know you can get a little more, more interesting, a little snarky, a Little sharp

0:04:23 Matt: That's right. Just a little fuzzier. Exactly, right.

0:04:41 Matt: That's right, yeah. If you want to make some points about opposing counsel, maybe the other party, there's some things you might have to say, you know, just drop it down there. And yeah. I'm not above it. I think it's great. Now, you know. Casey and I have been arguing about this for decades at this point since we went to law school together.

0:04:59 Thomas: Footnotes, actually. Yeah.

0:05:02 Matt: You now, she is a very practical person. She does not think footnotes have any purpose. She thinks that nobody's going to look at them and nobody's going to read them, and that you might as well say what you're going to say in the text. And lot of people think that.

0:05:11 Thomas: Holy shit. Casey, you're blowing my mind right now. Well, that's why, Oh, that'S why your relationship. Okay. I'm there's something to this, Matt.

0:05:18 Matt: That's right. Different people. It is true that I recognize that position, that if you want to say it, if it's worth saying, just say it in in the text.

0:05:26 Thomas: Say it to my face. Say to the face of the page of I almost had something, but I couldn't figure it out.

0:05:29 Matt: And I'm sure in this interview, I'm going to disclose where my footnote fetish came from as a child, but I have an abiding love for the idea of maybe something's not quite important enough to put into the main body, but it's still worth saying, and let's just get it in there. And so the point is that Professor Hoffer, all the way through this book, he looks at the history and purpose of footnotes, and it's fascinating because he goes from the very first Supreme Court case where the state of Georgia just didn't even show up famously to this case, Chisholm. They knew it was happening. They just didn'T send anybody to represent them in court. They didn't think the Supreme Court was important enough. And he takes us all the way through to Heller and Dobbs, the big blockbuster cases of our times. And the difference being that there's a rise of the professional class of lawyers to the point that you go from having footnotes be be something that are developing, and maybe they throw them in once in a while, to in the mid-20th century, they have law clerks that are starting to be introduced, and they're starting to participate more in bolstering these opinions, to

0:05:45 Thomas: Fair. Whoa. Wow. Fetishist

0:06:26 Matt: The point that now, that's

0:06:26 Thomas: Like Matt, you know, to where it's like Pornhub now.

0:06:28 Matt: Well, and also, it's just all out there. But not just that, it is also because law review has become the primary way that you distinguish yourself in law school. And I wasn't on law review myself, but had a great time in law school. I had too much fun."

0:06:41 Thomas: Wow. That is, I did not know that. Okay.

0:06:44 Matt: Yeah, no, you can be smart without being in law review, kids.

0:06:44 Thomas: What a waste yeah yeah

0:06:48 Matt: Knock on anybody who wants to do it. It just seemed to consume an enormous amount of time for a when I didn't want to do. But the fact is that now we have, in footnotes, we have judges arguing with each other in interesting ways. You have judges directly addressing each other. You've got Kagan and Alito talking in the footnotes in Dobbs. You You've got Scalia and Stevens having a back and forth because they've been circulating these drafts all this time. They know each other. They know what their opinions are. And now they're just having it out in public. But they're having it in public in these little marginalia fights, right? Not in the main text. And I just think that's fascinating. That's happening right in front of us, but in these Little Footnotes. So point being that there's all kinds of reasons that they've developed the way that they have and that they evolved the way they have. And I think I'm excited to talk to Professor Hoffer about all that.

0:07:29 Thomas: And what's the legal impact of that yeah

0:07:32 Matt: How much are they law? Law? That's a big question throughout this book. And because famously, there was at least one footnote that became good law. There's also, we're not going to get to it, but there's a headnote that became law. That's the whole other book probably. But to answer your original question, headnotes are actually the summary that are provided by the Supreme Court reporter. They are not law, except in this one case where they ended up making corporations into people accidentally in Santa Clara Railroad.

0:07:53 Thomas: My god that's the one where it had to be a stupid thing couldn't have been a good thing for once uh

0:07:58 Matt: A headnote became law, and I'd love to talk about that another time but you know and then of course in books you have end notes which are can be longer but are way back there yep

0:08:02 Thomas: So those are where you have to go all the way to the end of the friggin book to see him okay no one's gonna do that absolutely yeah okay thank Thank you.

0:08:09 Matt: You gotta flip yeah nobody's reading those I barely read those yeah even

0:08:13 Thomas: I'm so glad.

0:08:14 Matt: On kindle when you can just click through to them now right it's so convenient you can get back to your place um

0:08:16 Thomas: It's already hard. These were not designed for people with ADHD, although you somehow are an exception, but like it's hardly hard enough for me to read as it is, let alone if you're having me manually interrupt myself to like turn to something else and look at that. It's, that's impossible.

0:08:32 Matt: Will point out that you and I and Casey all have very different kinds of ADHD I have the kind where my house is a complete disaster uh but I read a lot of books so I don't know it's

0:08:38 Thomas: We have opposite ADHDs, Matt. I didn't know that was a thing, but we, we really do. We have, I read no books and if I didn'T have kids, my house would be in ship shape. Anyway, I can't wait to from Professor Hoffer. This is something that was right up our alley, of course. And get why on over to the interview.

0:08:46 Matt: We go you

0:09:01 Thomas: We're joined by Professor Peter Charles Hoffer. You have written a book that is so in our wheelhouse. Trying to contain how excited... It's about Supreme Court footnotes, and that is something we care a lot about here on the show. How are you doing today? Today.

0:09:13 Peter: Good. How are you?

0:09:14 Thomas: Great. We're so pleased to have you.

0:09:16 Peter: You for asking.

0:09:17 Matt: Just want to say I really appreciated the angle you took in this book and just generally all around it.

0:09:21 Peter: Book was fun.

0:09:23 Thomas: It's called the Supreme Court Footnote, and it looks like it has a pretty interesting origin story that our audience will appreciate. Do you want to talk about how you came to write this book?

0:09:33 Peter: In 1984, my wife and I did a book on impeachment, on the origins of impeachment in jurisprudence. And to our surprise and delight, we found that we were footnotes in U.S. v. Nixon. To surprise, again, the two justices that cited our book cited it for absolutely different different opinions. It struck us that we were not authorities. Text was being used and the justices, I won't name them, but But of them had some background in doing history. They the history authorities, not us. And when the bombshell broke of the Alito majority opinion released before the court released it, looked at that very carefully because, again, my wife and I have written pretty extensively on abortion rights.

0:10:01 Thomas: Please. Come on. This is Dobbs you're talking about. It.

0:10:43 Peter: And this wife, Natalie Hull. She's a law professor, historian, and so on. Okay. So what we noticed was that he had 117 footnotes, and a lot of them were history footnotES, where the citation was to what we would call a primary source. The for that was that he did not find in the, these are his words, history and tradition of American law a basis for the abortion right. That caught my eye. Well, history and tradition. Ordinarily, if you believe in expertise, the justices are experts on the law, but it's historians who are experts on history and tradition. What you saw in his opinion, and it's the same thing that Justice Scalia did brilliantly in Heller and the gun control opinion, was that the justices set themselves up as authority on and they used the footnotes, the way and kind of faux scholarship, pseudo scholarship, though they were writing histories, not legal opinions. And I'll tell you honestly, Honestly, that got my dander up.

0:12:10 Matt: Read the book, I could certainly see your dander all over this chapter, certainly. You have some great burns for Alito here. You say that his history is unilluminated by any professional historical commentary. I really appreciate that. That uh also there's another part here where you said that um have have a term for what alito had done on the footnote it is called quoting out of context pretty direct it doesn't doesn't seem like you're a fan of originalism at all I

0:12:22 Thomas: Classic.

0:12:36 Peter: Chapter is on originalism and originalism. The argument in originalism is that the basis for our interpretation of constitutional text should be the plain meaning of those who, wrote the constitutional text. The problem with that for historians is that our legal world and our political world has changed so much from the time that that text was written. Even if you're looking at the Reconstruction Amendments from 1866 to 1868, our world has has changed a tremendous amount. Originalism says that a judge can look at that text the help of his or her clerks and understand what the meaning of that text is according to the people who wrote it. Well, we who write history know that there's a lot more or context that is surrounding those words than a simple, plain meaning of those words. That context that forms our scholarship, that we're trained to look for, to weigh. So I don't think there are too many historians who buy into originalism as a doctrine for doing history. Now, if you want to argue that that's a legitimate doctrine for interpreting the Constitution, well, if You're a judge, what the judges say is what the law is, but it isn't what the history of the law is for that. And that's the subtext of my book. Have to look at what historians have said. So when you look at the footnotes in Heller, see you the difference between Scalia's footnotES, where he gives you primary sources, and then he sets himself up as a historian to interpret the meaning of those primary sources. And Justice Stevens' footnotes, where he says, let's look at what historians have said about that text. Can see the that I'm trying to bring out in the treatment of originalism in chapter seven. And in Chapter 8, which is what's gotten all the attention, as the book has gotten any attention, no one has gone back to look at Chisholm, which I think is a terrific case, terrifically important case. And it was the first case where you saw footnotes, it's and all the way back to 1793. But if you look at Chapter 8 and you look at the opinion where Olio strikes down Roe v. Wade, you'll see that he basically acts acts like a historian. I think that's justifiable or sustainable as historical scholarship. But then I'm just a historian, I'm

0:15:48 Thomas: What do you know? Yeah.

0:15:49 Peter: Not a justice of the Supreme Court. Now, I were sitting on a panel, which I don't think is ever going to happen, but if we were sitting on a pannel, said, well, look, here's my street cred. To Yale Law School, and I was on the of Appeals of the District of Columbia, and I've sat on the Supreme Court for many years. I came back and I said, well, that's very impressive. My street cred is that I'm a Harvard -trained historian with a PhD in history, and I spent a year at Harvard Law School as a legal history fellow. And I've written a lot of books based upon historical methods and And I to argue that you have no business setting yourself up as a historian of law. You should rely upon what historians of law have written. That's exactly what Justice Stevens did, and that's to some extent what Justice Kagan did.

0:16:56 Matt: Raised a question here because uh alito does have a bachelor's degree in history for what it's worth but and and Blackmun, of course, writing Roe v. Wade, was a doctor at least had some some I don' t know if he's a doctor he had medical experience at least he'd worked at the Mayo Clinic, I think.

0:17:10 Peter: Teaching history since 1967 when I was teaching fellow at Harvard and

0:17:15 Matt: I didn't mean to compare the situation, to be clear.

0:17:18 Peter: Been teaching people who've gotten bachelors BAs of history at Ohio State and Notre Dame and the University of Georgia for many many years I've written letters of recommendation for them to get into law school. I a semester just as a visiting scholar at Princeton. Myself as a friend and colleague of Dirk Hartog, who taught for many years for legal history at Princeton, And Laura Edwards, who, when Dirk retired, took his chair, and she teaches there. And I have the greatest respect for them. And I cannot believe that with knowing them and their views. I'm out of court here I probably shouldn't quote them but knowing them and their views of that agree with Justice Alito and can't believe that they would argue that his bachelors in history entitles him to now he have help He has four very bright people who work every year, who work as his law clerks. They are, and I actually mentioned them by name in the book, if you read my footnotes.

0:17:38 Thomas: Don't know everything. Are I know, Matt.

0:18:42 Matt: Did. I actually did.

0:18:44 Thomas: I know he did. I know he did.

0:18:46 Peter: Have the greatest respect for them. Them. Go on, many of them, to be law professors or to be judges themselves. I hope that when they do, don't set themselves up as historians.

0:18:59 Matt: That's my point, though. And I'm sorry if I didn'T make that very clearly, but Justice Alito is an amateur. I think it was 1979, he has a Princeton history degree. And, you know, I was a music minor, but nobody's asking me to to play for the Boston Symphony Orchestra in same way that Blackman, I think, spent some time at the Mayo Clinic and then wrote Roe v. Wade from a very medical perspective, which was criticized at the time. And I was just wondering if you have some thoughts about that. It's sort of like the idea that a little knowledge can be a dangerous thing, that suddenly he can set himself up because he feels like he has this background.

0:19:28 Thomas: Dunning -Kruger kind of thing. Yeah.

0:19:31 Peter: Well, his concurring opinion, Justice Thomas also cited history and tradition. They drew that that from that precise language, which they're entitled to do as precedent from an opinion that Justice Rehnquist wrote number of years before. In of precedent, which a common law system, of appellate courts, precedent is a source of law.

0:19:55 Thomas: Used to be.

0:19:56 Peter: Are entitled to the language of earlier cases as authority. That does not mean that Justice Rehnquist, who one of the strongest believers in originalism was to set himself up as a judge of what history and tradition, not law but history and traditional in the American experience is or was I I'm making the argument here And making it here much more strongly than made it in the book, although it obviously, as you read those last chapters, it came through, that there's an expertise that with getting a PhD in history that's very different from getting a JD in law. Law.

0:20:48 Matt: Doubt.

0:20:49 Peter: That training in how to weigh, how to assess, and then how to write about primary sources. That's what Scalia was doing. That's what Alito was doing, and that's what Thomas was doing—how to weigh those primary sources. Then you get in a law school, Well, then you get, as a judge, argued in other contexts that judges should turn to historians as expert witnesses. In many cases, district court judges have done exactly that. That. Are not the, I know I'm bloviating here and I apologize for it, but is not the same as the expert witness that's hired by a party in litigation, where the expert witnesses are supposed to find evidence to support the the position of the party, tobacco litigation, lead paint litigation, lands litigation, and so on. Talking about a master in equity, where the historian, And the historian reports to the judge, and judges did this after Brown v. Board of Education, to go and weigh, they appointed historians to do this, political scientists to do this, to go and weigh the evidence of community desegregation efforts and report to the judge. Then the judge would use that in reframing injunctions. Comes from the equity side of court activity alongside law.

0:21:53 Matt: Special master, essentially. Right.

0:22:06 Thomas: Really I

0:22:33 Matt: Right?

0:22:33 Peter: A long history of that. I wrote a book about this called of the law's conscience. And I became a great lover of equity and the master in equity.

0:22:42 Matt: Always appreciated this too, exactly what you're I did read the whole book. I'm going to talk about the middle of the book for a minute. So the Mueller v. Oregon chapter, where you talk about the use of the Brandeis brief, which is very similar to what we're talking about here, where it was the first time that it had been sort of acknowledged. So Louis BrandeIS, of course, being famous for writing these kinds of three pages of law, a hundred pages of fact kind of things to bring these things to the court attention. And the only footnote in that case was a summary of BrandeIs' brief, and that shows, I think, how influential it was.

0:23:10 Peter: Was, for me, a revelation because we teach and we talk about the Brandeis Brief. How did the Brandeau's Brief get into Muller v. Oregon? It's because Justice Brewer put it in And as a footnote, you

0:23:13 Matt: Me too. Yeah. Yeah. That kind of authority, it's very much like what you're talking about, though, sort of treating it as an expert witness. And in that case, it was as an amicus brief, obviously.

0:23:34 Thomas: Gonna mention that yeah that's the way they do it too that seemed reasonable all

0:23:37 Peter: Know, it was a it a friend of the court. Briefs, the friend of the court briefs. They were very rare once upon a time. And now they are not rare at all.

0:23:48 Matt: Dozens at a time.

0:23:48 Thomas: Of a sudden the court has so many friends

0:23:51 Peter: Always a first.

0:23:52 Matt: That's right. You point out, Alito had to ignore multiple amicus Briefs to get to where he got to in Dobbs. He had to ignore a lot of historians.

0:23:59 Peter: Yeah, well, I'm a little unhappy happy with the amicus briefs and the latest abortion cases, because they're retreads. Using the AHA and the OAH, American Historical Association, and the Organization of American Historians, briefs, or retread of the older briefs going back to Webster. I wish we had done better.

0:24:24 Matt: About law office history. I'm interested if you could expand on that a little bit about the way that the lawyers use history versus the way the historians use history. You talked about Alito having a staccato approach, which I took to mean a pick and choose, pull out what he wants kind of approach. That what you mean?

0:24:39 Peter: Expert witnessing. It's sort the of looking for evidence that supports your position. Not real scholarship. At best,

0:24:44 Matt: What you want. Historians don't do that, is what you're saying.

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0:26:35 Matt: Saying there's kind of parallel to something I've been thinking about recently and the role of historians as pundits, because we're seeing that too, of historians being pulled out to provide commentary current events based on past events. And that seems pretty dangerous as well, to be setting things as if we can make direct parallels between the past. And certainly it's important that we understand the past, we don't repeat history as we say, but do you have thoughts on that too?

0:26:56 Peter: Suggesting that I'm standing on that banana peel myself? Myself.

0:27:00 Matt: No, I was thinking in terms actually of the way that... When you're talking about the the way that historians came out during the Trump years, I was thinking about that. Was part of this myself. I'm not a historian, but talking about the rise of fascism and all the different movements around the world that we can look at to sort of understand. And of course, the Trump movement and a lot of what we're seeing today doesn't fit into any one neat box of any historical thing that we Can say. But I've seen more and more, maybe it's just my observation, but I feel like I've seeing historians making sort of definitive statements about history and politics in ways that are more punditry, I think, than history. That make sense?

0:27:35 Peter: That historians feel that no one's listening. And when you feel that no -one is listening, or that when your expertise is being ignored, and I won't mention Florida, for example, and the things that have been happening in Florida, you start raising your voice. Sometimes when you raise your voice, you find yourself shouting rather than speaking conversationally. Think you can change that. I don't think that you can change that. You That when go into your class and I stand in front of a hundred students, I'm going to be talking about those footprints that they found in the white sands in New Mexico. Ago that show that people have been walking in those sands 23 ,000 years ago. It changes the whole way that we teach American history. And I'm going to tell them that all those old textbooks that we've written, all those Those old lecture notes that we prepared on the first peopling have to be thrown out and have to do it all again because we have found new evidence. The thing that makes doing history so wonderful. Wonderful. The thing that I wish that Alito and Justice Thomas and those Yale people—remember, I went to Harvard—all those Yale people would understand, and that is we are learning new stuff all the time. Our history and our traditions are changing. Is why Why originalism doesn't work? Because we have come so far from a time where women couldn't vote and people held other people in bondage and immigrants were looked down upon. We have to recognize that the nation, the history and tradition changes, and we have to take those changes into account. So, to say that history and tradition ends in 1971, before Roe v. Wade was first decided in Texas, that and tradition of from 1971 to 19 to 2024 24 doesn't matter somehow is

0:30:06 Peter: A profoundly ahistorical point of view.

0:30:11 Matt: Think I'm thinking about this as you're saying it. With what you're saying. Of course, originalism as a model is deeply flawed and it's just never going to produce actual genuine good faith results. But I don't think that's the point. I mean, originalism is not supposed to work, I guess, in the way that historians would see things as supposed to tell stories that are true and accurate. Originalism is a tool being used by lawyers. And that's very much the point you're making in both the Heller and the Dobbs chapters are that you've got these people that are not really acting in good faith. I think it's okay to say that, that they're just taking what they need and throwing the rest away. And that must be hard as someone who's dedicated his life to trying to get it right.

0:30:46 Thomas: I think we should bring it down to footnotes back to footNotes rather I haven't heard as much footnote talk as I wanted to with a book about footnotES what other what

0:30:52 Matt: It's true. There's a lot of footnotes to talk about.

0:30:54 Thomas: Other examples maybe uh uh You know, can we illuminate here?

0:30:58 Matt: Go back here because there are so many to talk about. And made so many great points about sort of the whole concept of footnotES and the way that justices talk to each other and everything else. But I wanted to start, of course, as we're going through this with what you call the footnote, the one that every law student learns about, the ones that... I mean, I've always loved footnotEs personally. I've always been pretty open on this show about the fact that I have a footnote fetish and there's nothing I can do about it. Caroline Products is one of those things. Products case that Harlan Fuskstone wrote the most famous footnote in Supreme Court history, footnote four in that case. And it's very interesting to see the way that you're contextualizing it in the bigger picture of Supreme Court footnotes.

0:31:35 Thomas: Somebody should say what that is. I don't know if you're getting to that, but all

0:31:40 Peter: Non -isolated minorities. See, what was happening was that Court was stepping back from scrutiny of both and state economic regulations. It been knocking these down, and the New Deal court began to say, okay, we're going to let these pass muster. Then you have a problem. What if the state decides to pass laws that discriminate against minorities who don't have any political clout? In other words, you don't let them vote, you take away their civil rights. So number four, which has nothing to do whatsoever with adulterated milk, which is the case where it appears, and basically evaporated milk says that, look, we're going We're going to impose a stricter scrutiny on that legislation, basically state legislation, if we that insular, isolated minorities are disfavored by it. All instead of the more latitudinarian view it has a legitimate purpose and it seems to fit that purpose, we're going to apply a stricter scrutiny. That the basis for a lot of civil rights jurisprudence. Now, going to knock down state Jim Crow laws based upon that.

0:33:09 Thomas: From a footnote, huh?

0:33:10 Peter: Yes. Now, that raises the question that I raise in the book. A footnote law?

0:33:15 Thomas: Yeah. Was kind to ask that myself.

0:33:18 Peter: That came up with, this is me doing the history. The history showed me that if that footnote is relied upon in later decisions, if the footnote has relied upon, yes, yes, that footnote has been made into law. Let's look at footnote number 11 to Brown v. Board of Education, which is simply a list of social psychological tracts, pieces of scholarship, including Gunnar Myrdal's American Dilemma and so on. The court rely upon those citations? The answer is, in a way, it does. Because, because Chief Justice Warren's opinion says that this stigma, this mark of inferiority, brands the minds of the children. So how does he know this? He doesn't know this from legal He knows this from the sociology. So he says to his clerk, I need a footnote that says this. Boy, there's a storm of protest against that footnote. Can you take these studies, these psychological studies, and make them into law? Now, the protest against that came largely from Southern legislators, state legislators, and members of Congress who didn't like Brown for Board of Education. So it became sort of, it's the missing piece of armor in the dragon smog that enables the bowmen to kill the dragon. They thought that by shooting their arrows at that footnote, they could kill Brown v. Board of Education, but they failed. So those are the two footnotes, along with, as I've now made the argument, Brandeis' brief footnote, and probably the most famous. Don't think that any particular footnote in Heller or Jackson is going to become as famous as those footnotES. I think that they, as raise the question of how the footnote is going to fare, what its future is. And I think the footnote is going to be more and more a part of our constitutional jurisprudence. I think footnotes are going to Be more and more closely examined in our jurisprudence. I don't think that anyone is going going to get away again with just hiding stuff in footnotes or reading footnotES naively. Maybe I'm wrong.

0:35:58 Matt: I think you're right, because you made some fascinating points about why that is in the book and the evolution of Supreme Court footnotes. Because one thing you mentioned, of course, is the rise of the idea of the clerk. You have the point at which by Caroline Products, it came out later that a clerk wrote it, and he revealed that, and I think it was Mr. Lesky. And then when we get into the era of now, of Dobbs and Heller, we're talking about people people universally were on law review and read and wrote law review articles. And that's kind of their way of engaging the law. So it makes sense, just like you're saying, that if that's sort of the professional class of lawyers we're working with, and that's the future. We go from a time when clerks are maybe not even there or when they're optional, or they're just starting to a point where that's just accepted and normal, that you're going to have four or five people on your staff who are on the Harvard Law Review or Yale Law Review, whatever. So that makes a lot of sense to me. And it's a little concerning though, because it seems to make law less less accessible. Because I'm all about having Supreme Court justices write in a way that people can read it. Love footnotes. I think it's important. But is there something there about the rise of the professional class of lawyers sort of dominating? I thought that was one of the most interesting points of the book, in the evolution of everything. You're making the point that it's sort of the culture of law review, which is now kind of permeating the Supreme Court, because those are the people that read and write those decisions. And how do you think that affects the law overall to be run by law review editors?

0:37:18 Peter: The interesting thing is that they all, I should go back and check this before I say it, but I think they all made Law Review. And I think they were editors.

0:37:25 Matt: I don't doubt it.

0:37:28 Peter: Older son has a JD from Harvard and a PhD in history from Johns Hopkins. So he has both of those. And he was an editor of one of the Harvard Law Reviews. And he told me how carefully they worked on the footnotes. So maybe that was another, I hadn't thought of that, but maybe that conversation was another reason why I wrote this book.

0:37:40 Thomas: Got to get this guy in the Supreme Court.

0:38:00 Matt: The other point that you're making is the way that over time, justices have started to use the footnotes to argue with each other, which is one of my favorite things, honestly. I think that's so much fun to read when you can see the direct clashes. But the way you contrast Scalia and Stevens and then Alito and Kagan, and they're completely different approaches to the law and the way they argue in the footnotes, it is revealing. It is very interesting to be able to see them do that in front of us. As you point out too, who's the audience, right? Because it's not necessarily the general public is going to read these. You think they've started doing that?

0:38:29 Peter: Well, the audience is, of course, judges and, of course, lawyers who are involved in this litigation who are going to be arguing before the court. But it's also, and this is very important, law professors.

0:38:45 Thomas: And legal podcasters.

0:38:45 Matt: Of course.

0:38:47 Peter: Yeah. Oh, oh, yes. Oh,

0:38:49 Matt: Actually, I'm just going to share for a second. I think It's worth sharing. When I say that I have a footnote fetish, I mean, I really enjoy footnotes. And I think this started like many fetishes in childhood when I had a Schofield King James Bible.

0:39:00 Thomas: A babysitter who, I'm sorry.

0:39:04 Matt: Early on in the foreword, I think, you mentioned that one of the primary uses of footnotes is in scriptural exegesis. And the King James Bible, very famously, added so many footnotES to the King James. And I think more than anything, it opened my eyes in ways that I think other exegeses wouldn't because I can remember very clearly one moment where there's some battle in Old Testament history where, I don't remember the numbers, but let's just say that 300,000 people died and there's a footnote that Schofield drops and he's like, well, this is probably Scrivener's error. It was probably more like 3,000. I'm like, what? This is the divine word of God and I've got a footnotes telling

0:39:29 Thomas: Narrows it down. Yeah. Yeah,

0:39:43 Matt: Me that there's like a major error in it. That changed my life, that footnote, I have to tell you. You know, that's my footnote four.

0:39:51 Matt: And I do think a lot of impact if you pay attention. And even my wife was saying as we were coming on here, like, who wants to talk about footnotes? Her perspective, I will tell you as a practitioner, her mentor told her when she was getting started as a writer that you should only have one footnote in your brief, and that footnote should be, here's how I'm going to cite to the rest of the record, and here's the format I'm gonna use. I see that, and I know that you kind of talk about both sides of this in the book a little bit, but if you could offer maybe your best defense for the legal footnote? What is its best and highest purpose?

0:40:26 Thomas: Have

0:40:27 Peter: Best defense for doing the footnotes is it gives the justice a chance to say stuff where it really reveals where you stand it sort of gives you a chance to take that robe and hang it on a hangar and the judge behind it. And that's why I love footnotes.

0:40:51 Matt: With you. I'm with you all the way. Fact, you yourself, I have to commend, this is going to get really meta here, but you have an incredible footnote, footnote 284 in your own book, in which you disclose your own personal bias as somebody who studies abortion history and has participated in three different abortion history books. So I'm reading the Kindle edition, actually, I had to ask. In the hardcover edition, are there actually footnotes? Because there are endnotes in the Kindle edition.

0:41:16 Peter: Are in the series that we edited in Kansas called Law Cases in American Society.

0:41:23 Matt: Pictures.

0:41:23 Peter: And when the previous editor there, Mike Briggs, came to me, this is 1992, and he said, we would like to do a legal history series. What should it look like? I think this is the first time I've told this story in public. Princeton University Press had just turned down an opportunity to start a legal series that eventually went to North Carolina. I said, should try to get legal history into the classroom. The model for doing that is the Library of American Biography, a series from Little Brown that was edited by Oscar Handlin, and those were short books, ideally under 200 pages. They were written by scholars who'd written books already, so they knew how to write books. They weren't going to be revised dissertations. They weren't monographic. They were written for the students, but they weren't textbook-y. They were sort of essays, and they revolved around a case or a group of cases, they had no footnotes, a bibliographical essay, and depended upon the, uh, credentials of the person who wrote that book. No illustrations either. And we, we priced those books, were primarily in some cloth for libraries, but we priced those books at $15 so that you could adopt the books or the students didn't have to pay a lot of money. That series is still going. And there are 81 books in that series at the University Press of Kansas that we edited. And the Roe v. Wade Abortion Rights in History is in its third edition in that series. I have to say I'm proud of the fact that that series is still going. And since you have me here, both my sons have books coming out in that series. Son has one on The Sick Chicken Case, Schechter v. U.S., and my younger son has one on Penn Central v. New York, the great landmark case. They're both going to be coming out in the next year or so. And there are no footnotes in those books. So

0:43:56 Peter: Call me a liar.

0:43:59 Matt: That's great, though. I mean, it does kind of go to the point that I think a lot of people think that footnotes make something inaccessible. I don't think that's necessarily true, but so

0:44:05 Thomas: A hard time with them. I've always had a hard time as a lay person.

0:44:07 Peter: But I have to say this. You have noticed that The Supreme Court Footnote, A Surprising History, has footnotes. Most history books now by scholars have endnotes, and we have discovered that people never read the endnotes. But if you put footnotes in, and I insisted on this, and my editor at NYU, Clara Platter, who's a terrific editor, put in a plug for her, said, no problem, have footnotes.

0:44:28 Matt: No doubt. I do, but right. Well, that's what I wanted to warn you. I don't know if you're aware, but the Kindle version does have endnotes because they don't really do footnotes on Kindle. And I was disappointed by that. It's just how it is. It is nobody's fault. But I assumed that they were footnoted in the footnote book, but that's

0:44:54 Thomas: I smell a lawsuit.

0:44:57 Peter: Well, you can't win them all.

0:45:00 Thomas: Yeah Oh it's an absolute pleasure. Thank you so much, Professor Peter Charles Hoffer. The book is The Supreme Court Footnote. Is there anything else you'd like to tell our audience or anywhere you want to send them before you hop off?

0:45:01 Matt: Right. Kindle's being Kindle, but

0:45:15 Peter: The book!

0:45:16 Thomas: Well, of course, I have it linked in the show notes and everything.

0:45:19 Matt: A great read. Thank you so much.

0:45:21 Thomas: It's been a pleasure. Thank you.

0:45:22 Peter: Bye -bye.

0:45:23 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:45:40 Peter: Is my first rodeo as interviewee on a legal podcast. But I have to say, other than the fact that I'm losing my voice, I really enjoyed this one, which I think is a tribute to your preparation, so thanks my the book!

0:45:56 Matt: We try. Thank you.