Footnotes and Same-Sex Marriage

Not a pair of topics that you’d automatically put together, but bear with me . . . 

Legal writing enthusiasts differ on the proper use of footnotes, and I’ve posted before about the debate. One appellate jurist addressing my law school class advised that if a point is important enough to go in the brief, then it’s important enough to go in the body text of the brief rather than in a footnote. Ray Ward at the (new) legal writer noted that some people even presume that footnotes in appellate briefs are not likely to be read.  

Yet, I’ll bet every lawyer at least remembers learning in Constitutional law class about the importance of footnote 4 in the Carolene Products case, even if not every lawyer remembers why it was significant.

What prompts my thinking about footnotes this morning?  Believe it or not, it’s this morning’s California Supreme Court decision in In re Marriage Cases, case no. S147999 (May 15, 2008)., in which the court strikes down California’s same-sex marriage ban.  The opinions combine for 161 pages, and would have been even longer if the court had followed the advice above — but then again, the court undoubtedly was aware that these opinions — including every word in every footnote — would be more heavily scrutinzed than any other opinion in recent history.

And the court used that awareness to full advantage.  The majority opinion of 121 pages has 73 footnotes, many of them a half page long (single-spaced), and one (footnote 24) more than a page and a half long.  I estimate roughly 21 pages of that 121-page majority opinion is taken up by single-spaced footnotes.  Placed in the body of the text, they would have added 42 pages to the opinion and they appear to account for roughly one quarter of the opinion’s content.

There may be no single footnote likely to overtake footnote 4 in Carolene Products (then again, there might), but it will be interesting to see how much of the early commentary on the decision arises from points made in the footnotes, and it will also be interesting to see how widely cited the footnotes become in future cases.