A federal agency brief that a Washington judge threw out recently might be memorable for what the court called “excessive” footnotes—48 of them, stretching hundreds of lines. Some footnotes, on the other hand, can linger in a lawyer’s mind like memories of a first love.
We asked a few veteran U.S. Supreme Court and appellate lawyers to share the footnotes that, for them, have stood the test of time. First, however, a little history.
The first published footnote is generally attributed to—or perhaps blamed on—the Elizabethan printer Richard Jugge, who was searching for space for marginal notes about a passage from the book of Job. The space problem was “occasioned by a series of titles and an exceedingly large illustration of a half-naked Job receiving advice from his splendidly adorned friends. Jugge’s solution was to move two of the notes—’(f)’ and ‘(g)’—to the bottom of the page,” according to the 2006 article “Footnote Folly: A history of citation creep in the law.”
The late Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit once called footnotes in judicial opinions an “abomination.” He confessed he would sneak a peek at some and “I always read footnotes numbered 4.” That’s likely a reference to what’s been described as “the most important footnote in constitutional law”—Footnote 4 in United States v. Carolene Products, the 1938 ruling that applied a presumption of constitutionality to economic regulations.
Mikva’s essay included a single footnote: Footnote 4. There was no 1, 2 or 3. And that lone footnote said this: “Just what did you expect to find?”
What follows are recollections, edited for length and clarity, from several lawyers about memorable footnotes.
‘We Are Honored’
Remembering a stand-out footnote was “easy” for Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber: Footnote 7 in the 1992 case he argued American National Red Cross v. S.G. Justice David Souter, writing for the majority, said there: “The dissent accuses us of repeating what it announces as Chief Justice Marshall’s misunderstanding, in Osborn, of his own previous opinion in Deveaux. We are honored.”
The ‘War of the Dogs’ Footnote
Kannon Shanmugam recalls a lengthy footnote from his clerkship year with Justice Antonin Scalia. The Williams & Connolly partner called it the “war of the dogs” between justices Souter and Scalia over the meaning of the word “revoke” in the 2000 case Johnson v. United States.
Souter wrote in Footnote 9:
When text implies that a word is used in a secondary sense and clear legislative purpose is at stake, Justice Scalia’s cocktail-party textualism must yield to the Congress of the United States. (Not that we consider usage at a cocktail party a very sound general criterion of statutory meaning: a few nips from the flask might actually explain the solecism of the dissent’s gunner who “revoked” his bird dog; in sober moments he would know that dogs cannot be revoked, even though sentencing orders can be. His mistake, in any case, tells us nothing about how Congress may have used “revoke” in the statute. The gunner’s error is, as Justice Scalia notes, one of current usage. (It is not merely that we do not “revoke” dogs in a “literal” sense today, as Justice Scalia puts it; we do not revoke them at all.) The question before us, however, is one of definition as distinct from usage: when Congress employed the modern usage in providing that a term of supervised release could be revoked, was it employing the most modern meaning of the term “revoke”? Usage can be a guide but not a master in answering a question of meaning like this one. Justice Scalia’s argument from the current unacceptability of the dog and ox examples thus jeopardizes sound statutory construction rather more severely than his sportsman ever threatened a bird.
Scalia in Footnote 4 (of course!):
It is assuredly not current usage, however—I think not even rare current usage—to use “revoke” to connote a literal calling back. (“Since my bird dog was ranging too far afield, I revoked him.”) The Court chastises this example, suggesting that only a tippling hunter would “revoke” his bird dog, as “dogs cannot be revoked, even though sentencing orders can be.” I could not agree more. However, the definition the Court employs (“call back” without the implication of cancellation) envisions that dogs can be revoked–thus illustrating its obscurity. The OED definition on which the Court relies defines “revoke” as “to recall; to call or summon back … an animal or thing.” The first example it gives of this usage is as follows: “These hounds … being acquainted with their masters watchwordes, eyther in revoking or imboldening them to serve the game.” Of course the Court’s “not unheard of” usage is not limited to recalling dogs—oxen can be revoked as well, as the OED’s third example illustrates: “Ye must revoke The patient Oxe unto the Yoke.”
‘Other Startling Examples’ of Trademarks
Arnold & Porter Kaye Scholer’s Lisa Blatt had an instant classic in her Footnote 4 of her firm’s brief in Pro Football Inc. v. Blackhorse. She defended the Washington Redskins’ trademark in the U.S. Court of Appeals for the Fourth Circuit. The footnote was featured on comedian John Oliver’s HBO show and cited twice by Justice Samuel Alito Jr. in last term’s Matal v. Tam. (That ruling favored the Redskins.)
Blatt and her team—including attorneys from Quinn Emanuel Urquhart & Sullivan—identified “other startling examples” where the government had accepted trademark registrations. Those examples, as named in caps in the footnote and as noted in media reports, included OMAZING SEX TOYS; REDNECK ARMY; EDIBLE CROTCHLESS GUMMY PANTIES; and LAUGHING MY VAGINA OFF.
This Footnote Was the ‘Main Event’
“My favorite footnote is perhaps a bit boring,” said Jenner & Block’s Adam Unikowsky, who argued the Supreme Court case this past year Kokesh v. SEC. The case presented a question whether there was a statute of limitations on U.S. Securities and Exchange Commission disgorgement claims. “The SEC had been seeking disgorgement for 40 years, but I suggested in my brief and argument that the SEC’s authority to request disgorgement is a little shaky,” Unikowsky recalled.
The court wrote in a footnote: “Nothing in this opinion should be interpreted as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings or on whether courts have properly applied disgorgement principles in this context.”
Unikowsky said: “Of course, this implies that there’s at least an argument available that courts cannot order disgorgement—an argument that probably would have been laughed out of court before the Supreme Court issued its ruling. And I’d say that this one footnote on an issue the court was not deciding got as much—maybe more—attention than the decision itself, a good example of how footnotes can become the main event. Not quite Carolene Products, I realize.”
Memories of a New Courthouse’s Opening
“My favorite footnote is one I recently rediscovered while prepping to argue Hawaii v. Trump in the 9th Circuit,” said Hogan Lovells partner Neal Katyal. “My friends at Perkins Coie pointed out I’d be arguing the case in the same building where I argued Hamdan v. Rumsfeld initially—the old district court courthouse has become the Ninth Circuit courthouse.”
Senior U.S. District Judge Robert Lasnik of the Western District of Washington wrote in Hamdan: “It is very appropriate that a case of this significance bridges both the last days of the present Nakamura Courthouse and the opening of our new federal Courthouse. The present Nakamura Courthouse has been the venue for many important cases in its 65 years of use, including the trial of Gordon Hirabayashi in October of 1942 for violating a military curfew order and failing to report for internment. The cases of Hirabayashi v. United States, 320 U.S. 81 (1943) and Korematsu v. United States, 323 U.S. 214 (1944), both of which occurred in the aftermath of the Japanese attack on Pearl Harbor in 1941, serve as constant reminders of how our country and our courts must always remain true to the core principles embodied in the our United States Constitution, even in the aftermath of devastating attacks on our people and even in times of war.”
‘Dictum in the Extreme’
Sometimes “the most memorable footnotes are ones from judicial opinions that contain tangential thoughts—dictum in the extreme—that are taken out of context and given lives of their own in subsequent cases,” said Mayer Brown’s Michael Kimberly, who said he has a “strong policy” of minimizing footnotes.
An example of “dictum in the extreme” is Footnote 26 from United States v. Reynolds, the 1953 “state secrets” case that held the doctrine is an evidentiary privilege, akin to the privilege against self incrimination or the privilege protecting attorney-client communications.
“But its infamous Footnote 26 has since been read as establishing a rule that ‘the very subject matter of [an] action’ can be deemed a state secret in and of itself, such that the lawsuit must be dismissed altogether at the outset,” Kimberly said. “This terrible misreading of what was originally a trivial and innocuous footnote has since transformed the state secrets doctrine from an evidentiary privilege into an immunity doctrine. Perhaps it’s an example of the more general maxim: Footnotes are dangerous in briefs and legal opinions alike.”
And One Fanciful Footnote
And footnotes even appear in spoof legal briefs. In this year’s Mock Trial Series by the Shakespeare Theater Company. Morrison & Foerster’s Deanne Maynard defended the Weird Sisters in the company’s The Weird Sisters v. Kingdom of Scotland, based on “Macbeth.” In her written brief to two Supreme Court justices and three D.C. federal appellate judges, her first footnote said:
“While the record refers to the Sisters as ‘First Witch,’ ‘Second Witch,’ and ‘Third Witch,’ those labels are conclusory, likely produced by a male mind prone to stereotyping, and are not evidence.”
Maynard recalled that one of her favorite law professors told her class to always read the footnotes “because that’s where the good stuff is buried.”