Mr. Enrich: In a footnote in Flast [v. Cohen], the Court specifically says, “Having now decided that there’s Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be independent standing.”
Justice Scalia: I had not recollected that footnote. I will — I will find it. I don’t read footnotes, normally.
TaxProf Blog: Supreme Court Releases Transcript of Oral Argument in Cuno
Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), cert. granted, Nos. 04-1704 & 04-1724
Who can blame the man? Few disciplines have heavier footnotes than law. I sometimes think I chose it as a discipline for its footnotes, because I’m incurably parenthetical, which is something that footnotes help to accommodate (along with m-dashes, brackets and braces).
But note that “TaxProf” discovered this because transcripts of oral arguments are made public by SCOTUS: http://supremecourtus.gov/oral_arguments/oral_arguments.html; whereas, as Nick Pengelley points out in his recent Slaw posting, copies of our Supreme Court’s transcripts might be had for a fee from the Canadian Parliamentary Affairs Channel (CPAC), which televises (some of) and video records (all of?) the court’s proceedings.
In the New York Times today, the U.S. Supreme Court, footnotes and transcripts come together again. In Georgia v. Randolph (No. 04-1067), the court split 5-3 (Alito recusing himself) on a matter of criminal search. What amused me was this statement:
[A]s has often been the case in the court’s recent past, although not so far this term, the justices revealed their real feelings in the footnotes.
The devil is in the footnotes, where one can be not just parenthetical but snarky. (E.g. of high judicial snark: “Chief Justice Roberts responded in turn. The majority had mischaracterized his position on privacy and ‘seems a bit overwrought,’ he said in a footnote.” Take that!)
In the same article, because the transcripts are available, the reporter was able to point out that during argument Justice Breyer raised a question about whether a party’s position wouldn’t hinder the investigation of domestic abuse, something that cast useful light on his ultimate concurring opinion.
Opinions might be seen as sandwiched between oral argument and footnotes; it’s probably wise to read both — if you can.