Daily Read: The New Yorker on Justice Ginsburg, Fisher, and Footnote 4

Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."

Ginsburg stated that her dissent last term in Fisher v.  University of Texas Austin, regarding judicial review of  affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes."  That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."  

Recall that the 1938 case of  Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream).   It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases:  In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.