What do you think?
Rate this book
The Supreme Court Footnote: A Surprising History
A history of the humble footnote and its impact on the highest court in the land
In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice.
The Supreme Court Footnote offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time.
At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.
In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice.
The Supreme Court Footnote offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time.
At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.
232 pages, Hardcover
Published June 18, 2024
6 people are currently reading
61 people want to read
Ratings & Reviews
Friends & Following
Create a free account to discover what your friends think of this book!
Community Reviews
Displaying 1 - 9 of 9 reviews
Read
March 26, 2025I read this for work. It’s definitely academic writing, so it’s not very readable. Overall, I thought the topic was interesting, but I think it could have been a short snappy article instead.
July 31, 2025
Had I read this book in 2018, it may have caused me to abandon the law, to avoid any association with something this boring. I may have instead become a hobo, riding the rails from town to town, doing odd jobs for a can of beans and warning people of the dangers of reading this book, lest they fall asleep while operating heavy machinery.
In an homage to this book, I am going to write "Boat Propellers: A Suprising History."
In that book, I will cover a random assortment of 8 boats that I find interesting, several of which lacked propellers, and otherwise essentially just analyze why I like the boats. I'll make sure to mention at least once per chapter that the boat did indeed have a propeller, purely to justify the title.
At least he mentioned Footnote 4. By the time I got to that point, I was expecting him to omit it, instead telling me about some arcane point of bird law.
I'm still so angry while writing this review, that I feel the need to mention he opined that footnotes in future supreme court opinions could be replaced by hyperlinks. What? Yeah my car could get replaced with a space shuttle, its theoretically possible, but I think unlikely and probably not worth talking about.
Don't read this book.
In an homage to this book, I am going to write "Boat Propellers: A Suprising History."
In that book, I will cover a random assortment of 8 boats that I find interesting, several of which lacked propellers, and otherwise essentially just analyze why I like the boats. I'll make sure to mention at least once per chapter that the boat did indeed have a propeller, purely to justify the title.
At least he mentioned Footnote 4. By the time I got to that point, I was expecting him to omit it, instead telling me about some arcane point of bird law.
I'm still so angry while writing this review, that I feel the need to mention he opined that footnotes in future supreme court opinions could be replaced by hyperlinks. What? Yeah my car could get replaced with a space shuttle, its theoretically possible, but I think unlikely and probably not worth talking about.
Don't read this book.
September 4, 2025
This book opens with a discussion of a book written by an old professor of mine which unfortunately I think I would’ve preferred to this one. Grafton is interested in the general history of the footnote, but while Hoffer promises “a surprising history” of the Supreme Court footnote, he falls short.
Apart from the introduction and a very brief conclusion, the book is comprised of eight case studies, covering basically the entire sweep of American history. However, to understand the importance of these footnotes, you the reader (who may or may not have gone to law school) need to understand the cases and the opinions. As a result, Hoffer spends much more time on describing the body and context of the cases than on analysis of his purported topic. Because these are snapshots, I didn’t get an adequate grasp of the broader trends or philosophical debates on footnotes and how they were used. Hoffer adds a bit in his conclusion about how opinions were becoming more academic and closer to law review articles; again, though, I don’t think he really sold me on why footnotes were a key element of this. I sometimes got the sense that he was trying to hit a page count, often padding his text with long citations and digressions.
I also caught a few errors in my edition. Hoffer very confusingly misstates the outcome of Twinning v. New Jersey (1908) on pg. 92, despite it being described correctly in the opinions he cites in two appendices. He cites a case called Skinner v. Texas (1942) as overturning Buck v. Bell on pg. 177; as far as I can tell, he means Skinner v. Oklahoma (1942).
Hoffer is far from impartial in his discussion of Dobbs (which is fair, it’s an awful opinion). One comment of his struck me as odd. In describing the difference between Alito’s majority and Kagan’s dissent, he says (citing a book from 1977): “Women work in the home; men in the field; women adopt caring approaches to life; men are competitive and combative. While more accurate in describing pre-twenty-first-century life… men and women see history in different ways. The balancing of interests, rather than an absolute code of rights, fits one side in this divide.” pg. 180. In addition to being a bit gender essentialist, I think this does a poor job of making the point he wants to make. He seems to be saying that Kagan, as a woman, needs to present the issue as a balancing problem between state and individual interests whereas Alito, as a man, can simply deny that the right exists. Not only does this ignore the fact that, in a rare move, the dissent was signed jointly by Kagan, Sotomayor, and Breyer (a man known for his love of balancing tests), it also ignores Roberts’ more ambivalent concurrence. It seems perhaps accurate that many women view history differently from men, but Hoffer offers this almost as a biological truism rather than a product of a culture and nation whose “history and traditions” have, as Kagan (likely the main author of the dissent) argues, rendered women “second-class citizens.” Kagan’s perspective, probably informed in part by the fact that she is a woman, is that a court too wedded to originalism will continue to perpetrate inequalities present since the founding. She is right. Honestly, I don’t think Hoffer would necessarily disagree with how I’ve framed it here, but this passage struck me as clumsy at best.
Apart from the introduction and a very brief conclusion, the book is comprised of eight case studies, covering basically the entire sweep of American history. However, to understand the importance of these footnotes, you the reader (who may or may not have gone to law school) need to understand the cases and the opinions. As a result, Hoffer spends much more time on describing the body and context of the cases than on analysis of his purported topic. Because these are snapshots, I didn’t get an adequate grasp of the broader trends or philosophical debates on footnotes and how they were used. Hoffer adds a bit in his conclusion about how opinions were becoming more academic and closer to law review articles; again, though, I don’t think he really sold me on why footnotes were a key element of this. I sometimes got the sense that he was trying to hit a page count, often padding his text with long citations and digressions.
I also caught a few errors in my edition. Hoffer very confusingly misstates the outcome of Twinning v. New Jersey (1908) on pg. 92, despite it being described correctly in the opinions he cites in two appendices. He cites a case called Skinner v. Texas (1942) as overturning Buck v. Bell on pg. 177; as far as I can tell, he means Skinner v. Oklahoma (1942).
Hoffer is far from impartial in his discussion of Dobbs (which is fair, it’s an awful opinion). One comment of his struck me as odd. In describing the difference between Alito’s majority and Kagan’s dissent, he says (citing a book from 1977): “Women work in the home; men in the field; women adopt caring approaches to life; men are competitive and combative. While more accurate in describing pre-twenty-first-century life… men and women see history in different ways. The balancing of interests, rather than an absolute code of rights, fits one side in this divide.” pg. 180. In addition to being a bit gender essentialist, I think this does a poor job of making the point he wants to make. He seems to be saying that Kagan, as a woman, needs to present the issue as a balancing problem between state and individual interests whereas Alito, as a man, can simply deny that the right exists. Not only does this ignore the fact that, in a rare move, the dissent was signed jointly by Kagan, Sotomayor, and Breyer (a man known for his love of balancing tests), it also ignores Roberts’ more ambivalent concurrence. It seems perhaps accurate that many women view history differently from men, but Hoffer offers this almost as a biological truism rather than a product of a culture and nation whose “history and traditions” have, as Kagan (likely the main author of the dissent) argues, rendered women “second-class citizens.” Kagan’s perspective, probably informed in part by the fact that she is a woman, is that a court too wedded to originalism will continue to perpetrate inequalities present since the founding. She is right. Honestly, I don’t think Hoffer would necessarily disagree with how I’ve framed it here, but this passage struck me as clumsy at best.
May 7, 2024
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.
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.
May 13, 2024
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 give books that get an A or A+ 5 stars on Goodreads and NetGalley.
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 give books that get an A or A+ 5 stars on Goodreads and NetGalley.
Read
June 20, 2024This is not a general review of the use of footnotes in Supreme Court opinions. It is a review of eight Supreme Court decisions which had significant footnotes.
We don't get a statistical review of the change in the number and types of footnotes over the years. Hoffer has interesting things to say about the footnotes in the big cases he highlights, but there is no discussion of how the Court's use of footnotes in the run of the mill cases changed over the years. Did the Court lead or follow lower Court's use of notes? Are their more notes in opinions or dissents. Which Justices footnoted the most? The least?
Hoffer does a good job pointing out how the modern Court does its dirty work in the footnotes. The fight about the shoddy history of gun control in the Heller decision was fought out in the footnotes of Justice Steven's dissent and Justice Scalia's opinion. The fight about the selective use of precedent in the Dobbs abortion case was a prominent part of Justice Kagan's footnotes to her dissent.
Historically footnotes were not usually so numerous nor so contentious. There were no footnotes in Justice's Taney opinion in the Dredd Scott case. The concurring and dissenting opinions used footnotes primarily to note sources.
This is a well written sound book of legal analysis, but it did not answer many of the questions I have about the history and use of footnotes in Supreme Court opinions.
We don't get a statistical review of the change in the number and types of footnotes over the years. Hoffer has interesting things to say about the footnotes in the big cases he highlights, but there is no discussion of how the Court's use of footnotes in the run of the mill cases changed over the years. Did the Court lead or follow lower Court's use of notes? Are their more notes in opinions or dissents. Which Justices footnoted the most? The least?
Hoffer does a good job pointing out how the modern Court does its dirty work in the footnotes. The fight about the shoddy history of gun control in the Heller decision was fought out in the footnotes of Justice Steven's dissent and Justice Scalia's opinion. The fight about the selective use of precedent in the Dobbs abortion case was a prominent part of Justice Kagan's footnotes to her dissent.
Historically footnotes were not usually so numerous nor so contentious. There were no footnotes in Justice's Taney opinion in the Dredd Scott case. The concurring and dissenting opinions used footnotes primarily to note sources.
This is a well written sound book of legal analysis, but it did not answer many of the questions I have about the history and use of footnotes in Supreme Court opinions.
August 21, 2024
In this book, the author discusses the history and usage of the footnote and delves into several Supreme Court cases with notable footnotes. I expected the chapter on the beloved Carolene Products’ Footnote 4 as well as some foundational doctrinal cases, but I was delighted to also see the analyses on more recent cases like Heller and Dobbs - especially Dobbs. I appreciated the scope of information presented regarding how footnotes are used today. This book is an excellent supplement to a lawyer’s or law student’s study of the Supreme Court. I hope this will encourage readers to pay more attention to footnotes for all the insight (and sometimes entertainment) they provide.
Thank you NetGalley and NYU Press for the advanced copy of this book. All opinions are my own.
Thank you NetGalley and NYU Press for the advanced copy of this book. All opinions are my own.
Read
July 9, 2024I'm not a law student or an expert on legal cases, but I've always been fascinated by jurisprudence and the philosophy of the Supreme Court. This book is an intriguing look into the usage of footnotes to elucidate decisions made by the Supreme Court and justify decisions. It expands on this by selecting 8 court cases and examining the purpose of footnotes in these cases, in an engaging and accessible manner. Overall, this book was well-written and fascinating.
I received an ARC of this book in exchange for an honest review through NetGalley. This in no way influences the content or rating of my review.
I received an ARC of this book in exchange for an honest review through NetGalley. This in no way influences the content or rating of my review.
November 2, 2024
if you are a poli sci, international relations, or American Gov major- this is a great reference for you! If you’re just interested in American history- this is a great book for you! You think you know it all but this book provided small, but important, details about the history of the US and its government. 10/10 recommend
Displaying 1 - 9 of 9 reviews