The Future of Footnote Four

The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "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."' The importance of this principle cannot be overstated. It pervaded the work of the Warren Court2 and has played a prominent role in constitutional discourse ever since.3 In this Article, I reflect on the "discrete and insular minorities" component of Footnote Four, denominating it in shorthand fashion as the "unempoweredness principle." In doing so, I draw on the seminal work of my colleague Milner Ball and also touch on the work of other scholars, most notably Professor Cass Sunstein. I examine three main subjects.

First, I speak of the possibility that the rising rhetoric and reality of constitutional "minimalism" may dilute long-vibrant understandings of the unempoweredness principle. Second, I investigate one form that dilution of the unempoweredness principle might take-namely, by way of transforming it (in whole or in part) from a rule of hard-and-fast constitutional law into a rule of statutory interpretation. Third, I consider whether the unempoweredness principle now faces the prospect of wholesale abandonment.