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Justices Agree, But for the Footnote

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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The official syllabus of Monday's unanimous Supreme Court decision in Bank of America v. Caulkett concludes delightfully: “Thomas, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Ginsburg, Alito, and Kagan, JJ., joined, and in which Kennedy, Breyer, and Sotomayor, JJ., joined except as to the footnote.”

So I guess I should have said “almost unanimous.”

I can’t recommend reading the opinion itself -- not unless you have a professional interest in underwater junior mortgage liens on properties whose owners who are in Chapter 7 bankruptcy proceedings. But the tussle over that footnote is so deliciously distracting that one wants to believe that the justices were having a little fun. The footnote that three of them took such pains to avoid endorsing consists of the claim that an earlier court decision “has been the target of criticism” and a list of citations that criticize it. Maybe the dissenters don’t care for the citation style?

Let me explain that I adore footnotes. Footnotes that list sources, footnotes that elaborate on the text, footnotes that snark at other authors or make little jokes -- I love them all. To hop to the bottom of the page and find a citation helps tell me whether the author of, say, a popular history or biography has done any original research or is just compiling what other people have written.

I’m well aware of Noel Coward’s insistence that reading footnotes “resembles having to go downstairs to answer the door while in the midst of making love.” Everybody who’s against footnotes quotes him. I will confess, however, that I tend to be with Chuck Zerby, who in his history of the footnote offers a neat riposte: “The footnote is just as likely to bring to the door a welcome visitor, perhaps handsome or pretty, but often pleasantly sociable.” A footnote, he goes on to say, “is like a blind date” -- and therefore, unlike the text itself, “does not require or expect a long-term commitment.”

Nowadays, of course, footnotes are considered dreary. At least, that’s what publishers seem to think. Not just commercially published nonfiction but also works from university presses crowd all the source notes into the back of the book, where the reader often has trouble hunting them down. On the other hand, the ranks of novelists who deploy footnotes playfully seems to be growing. In recent decades the number includes such luminaries as John Updike, Junot Diaz, Susanna Clarke and David Foster Wallace, although perhaps the most famous use of the literary footnotes is probably by James Joyce in “Finnegans Wake.”

My own love affair with footnotes probably goes back to my love for old books and archives. Typing my senior honors thesis in college, and possessing no automatic means of measurement, I did what everyone else did: I drew tiny pencil marks in the bottom margin of each blank page, so that I would know when I was getting close enough to stop writing text and start writing notes.

The origin of the footnote is obscure. Zerby casts his lot with those who identity the inventor as Richard Jugge, printer of the Bishops’ Bible in mid-16th-century London, who supposedly set the annotations at the bottom of the page to avoid the overflowing marginalia so common to other versions. The grammarian Anthony Grafton, in “The Footnote: A Curious History,” tells us how the footnote came to conquer the academy, particularly among historians. He sees the development as trying to bring a sort of scientism to history: “They are the humanist’s rough equivalent of the scientist’s report on data: they offer the empirical support for stories told and arguments presented.” The footnote, he says, lends authority by transforming the text into a “double narrative” composed of the author’s thoughts and “the journey necessary to reach them.”

And, indeed, paging through the work of the left revisionist historians in the 1950s and 1960s, one cannot help but be struck by the long and detailed footnotes, the dissenters’ way of demonstrating to a resistant academy that they had done their homework according to the norms of the profession -- better, even, than the traditionalists whom they sought to displace.

Of course, legal scholars and judges love footnotes too. Again, just consider the Supreme Court. A single footnote in Chief Justice Harlan Fiske Stone’s utterly uncontroversial 1938 opinion for the court in United States v. Carolene Products has generated an entire literature. Some are deliciously snarky. Among my favorites is from Justice William Rehnquist’s majority opinion in the nearly forgotten 1981 decision, United States Railroad Retirement Board v. Fritz: “The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.”

Nowadays, the end of the footnote is routinely predicted. I myself hope the predictions are wrong. Footnotes are too much fun to be banished to the back of the book.

  1. True, it’s easier on a Kindle.

  2. I tried to persuade my editor to let me include footnotes in one of my novels, but she sensibly required me to stick them into an author’s note at the end.

  3. In another essay, Grafton cites a footnote from John Hodgon’s “History of Northumberland” that runs from page 157 to page 322. I freely confess that I have not double-checked the source.

  4. Among the literature inspired by the Carolene Products footnote is a delightful ramble by my Yale colleague Jack Balkin titled “The Footnote,” that includes a discussion of why footnotes have such a bad reputation, and concludes with the following footnote:  “Note to the editors of the Law Review -- place the entire text of this Article (including the footnote with these instructions) in this footnote. If this causes a problem of infinite regress, improvise.”

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