Justice Ginsburg said at the National Constitutional Center last week that her dissent defending affirmative action was inspired by a footnote in a 1938 decision.
Footnote Four, which Caplan calls constitutional law’s most important footnote, says the Supreme Court should give laws that affect minorities extra scrutiny.
The case itself wasn’t particularly remarkable. It dealt with a federal law that barred the shipment of filled milk (milk that has vegetable oil or other fat added to it) between states. The court said that it wasn’t its place to overrule Congress in that instance. However, Justice Harlan Stone included a now-famous footnote that specified the instances when the Supreme Court can step on lawmakers’ toes.
Here’s Footnote Four in its entirety:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first 10 amendments, which are deemed equally specific when held to be embraced within the Fourteenth …
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote … on restraints upon the dissemination of information … on interferences with political organisations … as to prohibition of peaceable assembly …
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious … or racial minorities … whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
Chief Justice John Roberts’ court — which has obliterated school integration plans and decimated the Voting Rights Act — has flown in the face of Footnote Four, Caplan writes.
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