In a recent discussion on the role of footnotes within Supreme Court opinions, the diversity of opinions among justices becomes evident, offering a unique perspective into the evolving nature of legal documentation. Historically, footnote usage was sparse, with Justices like Oliver Wendell Holmes, Jr. and Benjamin Cardozo opting for opinions without heavy reliance on them. Chief Justice Charles Evans Hughes famously declared, “I will not be bound by a footnote,” emphasizing the period’s preference for conciseness.
However, the 20th century saw a marked increase in the density of footnotes across judicial writings. Not all supported this trend. Justice Lewis F. Powell Jr. advised his clerks against crafting “long, heavily footnoted opinions,” while Justice Arthur Goldberg expressed his belief that footnotes often “cause more problems than they solve.” Justice Stephen Breyer embraced simplicity, publicly promising during his nomination speech to maintain clarity in his writings, a pledge he upheld during his tenure (further details here).
Justice Sandra Day O’Connor shared a similar sentiment, reportedly cautious of them in her work. A former law clerk described her dictum: “If you have something to say, just say it.” Her opinions averaged significantly fewer footnotes than those of her contemporaries. Justice Ruth Bader Ginsburg advocates for brevity, suggesting that opinions should be both accurate and concise, avoiding superfluous additions.
The conversation on footnotes is not purely academic. For those analyzing the intricate legal prose of past and present justices, opinions vary from celebrating their informative nature to critiquing their potential to detract from concise arguments. Famously, the 1961 ruling in McGowan v. Maryland holds the record for the most footnoted words, a testament to Justice Felix Frankfurter’s prolific annotation, which comprised nearly 41% of the text. It remains a subject of fascination for scholars and litigators alike.
For more on this topic, visit the original article at SCOTUSblog.