The Promise of Carolene Products: A Footnote to the Footnote

Abstract

The Supreme Court’s upholding of Congress’s Filled Milk Act of 1923 which banned the shipment in interstate commerce of skimmed milk compounded with certain fats or oils excited little comment at the time. Yet a seemingly passing observation arising out of the decision has continued to hold enduring, almost obsessive, significance for academics and judges alike. I refer, of course, to Justice Stone’s famous footnote 4 in U.S. v. Carolene Products. That footnote, arguably the most famous in legal history, reads in relevant part: “…It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation…Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or racial minorities…whether 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 promise of this brief reference to a heightened role for judicial review where political processes were likely to work against discrete and insular minorities served to inspire John Hart Ely’s Democracy and Distrust. Forty years after Carolene Products had been decided, Ely agreed that “discrete and insular minorities” could often be failed by political processes and that courts should step in to remedy such failures. Ely realized, as Justice Stone did, that discrete and insular minorities could forge political alliances and “mutual defense pacts” with other minorities as well as with broader majorities. He knew, however, that such wheeling and dealing has its limitations – sometimes political allies simply cannot be found.