By William Hornbeck, ACLR Featured Blogger

           Recently, a disturbing trend has emerged in civil and criminal Supreme Court cases alike: Justices joining each other’s opinions in full except as to a footnote or two. Whatever drives Supreme Court Justices to refuse to join each other’s footnotes, they need to find a way to resolve their differences without presenting such a divided appearance to the public.

            Before John Marshall joined the Supreme Court, the Justices followed the British common-law tradition: each Justice wrote their own opinion seriatim.[1] To determine the outcome in a case, a member of the public would therefore have to read each opinion and determine whether a particular proposition commanded a majority of the court. Chief Justice Marshall convinced the brethren to have only one opinion for the entire Court, usually written by Chief Justice Marshall himself.[2] Each Justice could join the Court’s opinion, concur in the judgment, or dissent. Chief Justice Marshall was famously persuasive, often convincing his brethren not to dissent and thereby preserving the Court as a unified and persuasive force.[3]

            Over time, the Court has fluctuated in how unified it appears to the general public. The Stone and Vinson Courts were among the most fractious of all time: Justices like Frankfurter, Black and Jackson had strong wills and little taste for compromise.[4] But a strong Chief Justice can make a difference: the same Justices who gave Stone and Vinson such trouble managed to join unanimous opinions in Brown and subsequent desegregation cases, thanks largely to the efforts of Chief Justice Warren.[5]

            Perhaps the first prominent example of Justices refusing to join each other’s footnotes came in Michael H. v. Gerald D.[6] The question presented in Michael H. was whether a California law violated Due Process; the Court held 5-4 that it did not.[7] There was no opinion of the Court. One Justice (Rehnquist) joined Justice Scalia’s plurality opinion in full, Justices Kennedy and O’Connor joined Justice Scalia’s opinion in full except as to footnote 6, and Justice Stevens concurred in the judgment.[8] Footnote 6 of Justice Scalia’s plurality opinion set out a framework for Due Process that would later be adopted by the Court in Washington v. Glucksberg.[9]

            Recently, Justices have been refusing to join footnotes that are much less weighty than the Michael H. Due Process framework. In Levin v. United States,[10] Justice Scalia refused to join footnotes 6 and 7 of the otherwise-unanimous opinion of the Court, as Justice Ginsburg cited legislative history in those footnotes. InSandifer v. United States Steel Corp,[11] Justice Sotomayor refused to join footnote 7 of the otherwise-unanimous opinion of the Court, in which Justice Scalia noted but declined to further discuss the canon that courts should narrowly interpret exceptions to the Fair Labor Standards Act.

            If a Justice wants to refuse to join a footnote because they think that the footnote is too important, the Justice who is writing the opinion of the Court should move the footnote to the text. In Michael H., one of Justice Blackmun’s clerks from that term recounts how Justice Scalia originally had a full majority for his opinion, but the addition of the footnote caused Justices Kennedy and O’Connor to send Justice Scalia memos taking back their earlier join memos.[12] Rather than stubbornly leaving the footnote where it was, Justice Scalia should have moved the footnote to the text, perhaps in its own section. That way, Justices Kennedy and O’Connor could have taken the more conventional approach of joining all but a particular section, rather than joining all but a particular footnote. While joining all but one section presents a less than united face to the public, joining all but a footnote seems much more petty. To the average member of the public, the fact that something is in a footnote suggests that it is not important enough to have in the text.[13] If a Supreme Court Justice publically states that they agree with everything in the text but disagree with a footnote, it makes it appear that they are missing the forest for the trees, and that the Court is so fractious that they can’t even agree on minutiae.

            If a Justice wants to refuse to join a footnote because it states a principle of law (however minor) that they don’t want to be on record as agreeing with, they should concur in the judgment without opinion if they cannot convince the Justice writing the opinion to remove the footnote. If a Justice concurs in the judgment without opinion, they do not go on record as agreeing with any of the reasoning of the majority opinion, they have expressed their views about how the case should be resolved, and they avoid writing an opinion that criticizes the Court or its members.[14] Of course, the easiest way to solve the problem would be for the author of the opinion of the Court to delete the footnote entirely. But just as a dissenting Justice might feel very strongly that a principle of law is wrong, the rest of the Court might feel that the principle is correct and ought to be reiterated. For example, while Justice Scalia has a well-known antipathy to legislative history, the Court has often reaffirmed its commitment to using legislative history to interpret statutes, specifically refuting Justice Scalia’s arguments.[15]

            It might be objected that Supreme Court Justices often don’t know in advance that a particular footnote will become important over time, and will therefore be unable to decide which of my proposed approaches to take. Justices are always wary that other Justices will drop seemingly innocuous dicta in the majority opinion, thereby creating a legal basis for a future ruling that the joining Justice would find objectionable. Justice Brennan became so famous for this practice (colloquially known as “burying bones”) that Justice O’Connor refused to join his opinions in almost any instance.[16] The solution to this problem is to say that if a Justice is truly unsure whether a footnote is going to be substantive in the future, they should err in favor of asking that the footnote be moved to the text. The true crux of the dispute over burying bones is not over whether the potentially exceptionable passage should be in the body of the text or in a footnote; the dispute is over whether the passage should be in the opinion at all. Asking the author of the majority opinion to move a passage to the body of the text puts them on notice that the passage is more important than they initially thought.

            It took the strong will, extraordinary talent, and unparalleled persuasive ability of Chief Justice Marshall to convince the Supreme Court to depart from the common-law seriatim tradition and release an opinion of the Court. It took the political savvy and overall geniality of Chief Justice Warren to convince his colleagues to put aside their differences and stand as one court behind integration. By eliminating the practice of dissents from footnotes, Chief Justice Roberts could place himself in the pantheon of Chief Justices who have made the Court more harmonious, or who have at least enabled the Court to present an image of unity to the public.