Footnote four in the Supreme Court’s opinion in United States v. Carolene Products Co. is the most famous footnote in the Court’s history. The footnote embraces an attractive theory of judicial review: that the role of the Court is to correct defects in the democratic political process but otherwise to allow important decisions to be made by the elected branches of government. The footnote marked the end of the pre-New Deal era when the Court was hostile to social welfare and regulatory leg-islation, and it foreshadowed the Warren Court’s attack on segregation and expansion of constitutional rights.Nonetheless, footnote four has been subject to telling criticisms. It seems to reflect a naïve view of the ability of the text of the Constitution to resolve controversial questions. More important, the footnote requires the courts to assess the political power of different groups in society—something that judges do not seem well equipped to do. The footnote’s implicit account of which groups are likely to lack political power may be fundamentally mistaken. And the footnote falls far short of its objective of keeping the courts away from controversial political issues. One can fairly ask whether the Carolene Products approach, however fruitful it may have been in mid-twentieth-century America, no longer has a role to play in constitutional law. But is there a better way to think about what the Court should do in constitutional cases? The theory of the Carolene Products footnote uni-fies some of the greatest successes in the Court’s history: Brown v. Board of Education, the “one person, one vote” decisions, and the expansion of the free speech rights of political dissidents. For all its weaknesses, the Carolene Products footnote identifies an objective and a set of standards by which the Court’s work can be judged. And, perhaps most important, no one seems to have come up with a better approach.
The full text of this David C. Baum Memorial Lecture is available to download as a PDF.