The True Workhorse of Some Supreme Court Opinions? Footnotes.

The devil's in the details—footnotes can influence constitutional law.

Illustration of a SCOTUS footnote
Supreme Court justices have long used footnotes to infuse precedent into their decisions. Shutterstock/Austen Risolvato/Rewire News Group illustration

When deployed in the Court’s opinions, most footnotes are indicators of precedent—giving the citations that tell which precedents apply to the present case. Ironically, when the Court overturns a long line of precedents, the footnote has even more work to do, because the opinion must cut loose from an established line of precedent and create a new one. As for example, in Dobbs v. Jackson Women’s Health Organization, the dueling footnotes in the majority and dissenting opinions marked a corresponding contest in public opinion and national politics. Justice Samuel Alito used 117 footnotes to ground his decision in precedent of history and tradition. Dissenting Justice Elena Kagan’s 31 footnotes offered a different concept of precedent, or rather, an attempt to reunite precedent with a different history and tradition.

There are two narratives of reproductive rights in American history. The first is a story of anti-abortion laws that sought to protect women who were pregnant from the dangers of the abortion, a story played out over 200 years; the second is a far shorter story of the effort to provide legal and safe abortions to women who wanted to end their pregnancies. The footnotes in the opinions in Dobbs featured these alternative histories. But like the warring readings of historical texts in the gun control cases, the historical scholarship was subject to opposing readings in Dobbs. In other words, the justices looked at the history differently, some seeing the later history as part of the whole story, others, under the doctrine of traditional values, seeing only one part of the history leading up to Dobbs. In the latter, recent precedent and older history warred with one another.

Justice Alito delivered the opinion of the Court in Dobbs. His introductory passage was remarkably similar to that in Roe v. Wade: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”

As an originalist who believed in judicial restraint, it was not surprising that Justice Alito found no basis in the language of the Constitution for a right to an abortion.

The opening passage seemed to view a balance of equities—legitimate but vying views of the abortion practice. But from the first moment he sat on the court, Justice Alito thought that Roe was badly reasoned and wrongly determined. He had no use for balance of equities doctrine. At his confirmation hearings, he said that he had an open mind on Roe and would be impartial, but his record on the Third Circuit and his general views on originalism suggested otherwise. He had been a conservative thinker from the time that he attended Princeton, then Yale Law School. He served on the Court of Appeals for the Third Circuit and was President George W. Bush’s choice to replace the retired Sandra Day O’Connor on the Court. Although there he voted with Justice Antonin Scalia 75 percent of the time, he was never a Scalia clone. Unlike other conservatives, he looked to the legislative record (in the states) for statutory meaning but preferred judicial restraint to the Court’s acting as a super legislature.

As an originalist who believed in judicial restraint, it was not surprising that Justice Alito found no basis in the language of the Constitution for a right to an abortion. Instead, it was “the Court [that] held that [the Constitution] confers a broad right to obtain one. [Roe] did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion” incorrect (e.g., its assertion that abortion was probably never a crime under the common law).”

Alito’s statement of facts was incomplete. Historians are wary of bare facts, recitations of names and dates without broader context. A more nuanced and complex rendering of facts would include evidence that the first state laws were designed to protect the putative mother from the abortionist rather than to criminalize the mother’s actions. They came at a time when white women were second-class citizens, without the right to vote, hold office, or own property if they were married. Black women and Native women faced even greater hardships. But to Alito, the history in the legal briefs raising these issues did not have a bearing on the constitutional status of abortion. The history that did matter was the history and tradition—the precedent—of criminalization.

Alito was not interested in his judicial predecessors’ struggle to define viability or the various formulas they assessed to weigh women’s health versus the potential rights of the fetus or the unborn child. “The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning.” For this, he quoted not a supporter of Roe but John Hart Ely of Yale Law School, an opponent: “One prominent constitutional scholar wrote that he ‘would vote for a statute very much like the one the Court end[ed] up drafting’ if he were ‘a legislator,’ but his assessment of Roe was memorable and brutal: Roe was ‘not constitutional law’ at all and gave ‘almost no sense of an obligation to try to be.’” Later in the opinion, and then in the footnotes, Alito cited line and verse from academic commentators to demonstrate how inconsistent and incoherent Justice Harry Blackmun’s opinion was. But he did not cite historians, in particular the historians in the various friends of the court briefs to the abortion cases. One supposes, perhaps naively, that an opinion resting on the doctrine of history and tradition would entail a wide and deep survey of historical writings. Not so here.

Instead, like Scalia in District of Columbia v. Heller, Alito appointed himself the official court chronicler. Professional historians endure years of graduate training, and the results of Alito’s spontaneous career change would not have impressed professional historians. His history was a bare recital of bits and pieces of statute without context or contemporary analysis. They came from different places at different times, but he lumped them together: “At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process.” He gave evidence for this blanket statement in an appendix, then again at the end of the footnotes, but there again he simply recited the bare bones of the statutes, with their dates. There was no attempt to pierce the veil of the legislative debates or the surrounding events to reveal historical context. Legislative intent to bar the practice of abortion was assumed.

By contrast with the variety of state laws, Alito found that Roe imposed a “highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.” Footnote 3 and the appendix underlined the point. But it was wrong, for no sooner did the decision come down than protest against it led to various states’ reimposition of restrictions. The opposition led to more litigation and ultimately to Dobbs. Although “Justice Byron White aptly put it in his dissent, the decision represented the ‘exercise of raw judicial power,’” it was never an effective power, for as White continued, and Alito conceded, “it sparked a national controversy that has embittered our political culture for a half century.”

Cover of The Supreme Court Footnote
Courtesy photo

Alito’s history of the abortion rights controversy after Roe demonstrated to him that the rationale for its holding was never really established. The court in Webster v. Reproductive Health Services (1989) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) reconsidered Roe and split over the precedent. A switch of one vote would have overturned Roe, but, although expected by many observers, that vote did not come. Instead, in fragmented opinions, members of the court defended, attacked, or revised Roe, supplanting the original trimester formula with an “undue burden” standard. In Casey, the idea that “stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe’s ‘central holding’—that a State may not constitutionally protect fetal life before ‘viability’—even if that holding was wrong.” Actually, none of three justices in the latter “joint opinion” in Casey—Anthony Kennedy, Sandra Day O’Connor, and David Souter—said anything about a “wrong.” But they did invoke the reliance that pregnant women had placed on Roe as one important reason to retain it.

The persistence and political influence of the opponents of abortion rights proved to Alito that “as has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly.” What in fact some legislatures did was to ask the Court to overturn Roe, while in the meantime undermining it. Alito continued: “And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.”

In Dobbs, Mississippi wished “to uphold the constitutionality of [its] law that generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is now regarded as ‘viable’ outside the womb.” Alito ignored that portion of the state’s case and found that “the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.” In answer to the state’s plea, Alito decided, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the due process clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” So the end of Roe required rejection of substantive due process, the absence of deep rooting in the nation’s history and tradition, and a reading of the open-ended formula in Palko v. Connecticut for the exceptions (not the inclusions) of “ordered liberty” of the Bill of Rights in the 14th Amendment.

It was the history and tradition portion of the majority-opinion decision that redefined precedent and required the display of historical evidence. But among historians, one cannot simply offer historical text without some explanation. In Alito’s view, that enterprise did not require a deep or broad historical account. The historians of abortion in the friends of the court briefs had already provided some context, and Alito discarded it. Instead, he offered the same kind of bare-bones historical recital that one found in Heller, as if history were simple and easily read, like the language of the Second Amendment.

But unlike Heller, which was something of a novel case, Roe had lots of baggage that had to be thrown overboard. “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” Quoting from the decision that he was discarding was clever, but the definition of unborn was itself subject to a long history, which was not even alluded to in Alito’s opinion. It was simply implied. That is, Alito assumed that the embryo was a human being waiting to be born. The fetus was an intermediate stage. The dissenters feared that the next step would be the undoing of privacy rights like birth control, but Alito insisted that Griswold v. Connecticut was not in danger.

The other difference from Heller was that Roe was not long-established precedent. Alito pitted recent precedent against precedent rooted in history and tradition. The latter won. “Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” That was certainly so—abortion rights had become, for many Americans, more important than the wars in the Middle East at the time.

The decision seemed to end here. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’” But the opinion was only just beginning; more than 80 percent of the opinion was yet to come.

Excerpted from The Supreme Court Footnote: A Surprising History by Peter Charles Hoffer, published by NYU Press, 2024.