There are two rival schools of thought on the issue of footnotes, each of which may be summarized as follows:

1) Do or do not: there are no footnotes.¹

2) DFW: “Reality is fractured—at least the reality I live in.” ²

At risk of oversimplification, this debate may be distilled to the ongoing jurisprudential conflict between conservative strict constructionism and the progressive “living Constitution” approach. Anti-footnoters believe that³ they have meant what they said and said what they meant and that no further exposition should be necessary. Footnote fetishists, meanwhile, babble about the need to “gloss” the text and provide further context and discussion of significant points that might suggest further nuances of meaning.

For as pretentious as my theory may sound, it is actually true: the last study to really comprehensively examine the subject found that the U.S. Supreme Court’s most historically prolific footnoters—e.g. Brennan, Brandeis, Blackmun, Marshall—were also its most liberal, while the justices who limited their use⁴ were almost uniformly of  conservative-to-moderate persuasions.

And here’s why: Footnotes are intrinsically countermajoritarian; they literally live in the outer margins of reasoned thought. Their understandable sense of disenfranchisement and heightened awareness of their own shortcomings can often hinder—or even preclude—any kind of meaningful relationship with the reader, and they seem to know this as they sit biding their time in their designated hermitages at the bottom of the page. They are often just happy to be noticed.⁵

Anyone who has taken a Constitutional Law course has encountered the most influential footnote in American jurisprudence, Justice Stone’s now-famous Footnote Four in United States v. Carolene Products, 304 U.S. 144 (1938). Footnote Four, which humbly suggested a brand-new standard of judicial review for certain kinds of legislation targeted at “discrete and insular minorities,” is the only reason that this otherwise unremarkable interstate commerce case is still read by Con Law students today.⁶

Footnote Four, like any really good footnote, was an agent of faint dissent. Although it did not directly suggest that a better approach to the problem of judicial review of certain kinds of legislation was necessary, it deferentially pointed the way toward one that maybe the Court should think about possibly considering. Just one year prior⁷, the Court had effectively ended the quarter-century tyranny of Lochner v. New York, the infamous 1905 decision under which it decided that it could (and should) strike down dozens of state economic and labor regulations meant to protect workers on the basis of the openly pro-business finding that such laws interfered with the Constitutional “freedom to contract.” Lochner wasn’t entirely dead by the time of Carolene Products, but Footnote Four quietly left a lit grenade on its mangled remains and ran away laughing.

I will never write a Footnote Four, and I guess I’m okay with that. But I confess that I still agonize over my own footnotes, and read them back carefully. I am compelled to continue to edit and rearrange and poke at them long after the main body of my argument is complete. I sometimes imagine that some tired Appeals Court law clerk will start to read my brief at 5:45 on a Wednesday night and be so taken by one of my wittier footnotes that she will photocopy and highlight it and hang it in a place of honor for all to see. By the time that my case is scheduled for oral argument, my footnote will have reached such heights of fame that the entire panel and all of their clerks and everyone in the gallery will be on the edges of their seats waiting for me to further expound upon this most delicately and exquisitely crafted flower of marginalia.⁸

Looking back over all of this, I see that I haven’t even cracked the door into the wide world of footnote humor. Another time.

RIP DFW; I’ll see you in the margins.⁹

1. If it wasn’t important enough to include in the main body of your argument, why are you shrinking it down to 8-point type and squeezing it in a single-spaced box at the bottom of the page? Nobody wants to read your stupid little thought droppings, Poindexter.
2. Footnotes, endnotes, and other marginalia are therefore “a way to speak to this essential fracturedness without creating a text that is unreadably fractured in and of itself.”
3. Like Horton the elephant and the constructionist version of the Framers
4. Or, if you can imagine this, eschewed them altogether!
5. Then again, in the Massachusetts Appeals Court, as in many other appeals courts, footnotes must be presented in the same 12-point size as the rest of the text. This makes them harder to ignore, of course, but in so doing also cheapens the whole idea of what I think a footnote should be.
6. Yes, it’s true: An entire case made famous by a single footnote!
7. In West Coast Hotels v. Parrish , 300 U.S. 379 (1937)
8. Brief writing, like most other kinds of writing, is a long, lonely, often-frustrating process which leaves the author plenty of time for daydreaming. Obviously.
9. One final, appropriately-footnoted, confession: I get a polymorphously perverse pleasure in citing directly to another case’s footnote within a footnote of my own. It’s the sense of whispering in a dark theater with a friend, fomenting a quiet subtextual conspiracy.