1938 April 25

Supreme Court Footnote Outlines Future Protection of Civil Liberties


Footnote 4 of United States v. Carolene Products, decided on this day, is probably the most important footnote in Supreme Court history. In the note, Justice Harlan Fiske Stone charted a new course for the Court in protecting political and civil rights. The previous year, the Count had withdrawn from striking down economic regulations under the Fourteenth Amendment, and began turning its attention toward individual rights. The Roosevelt Court (1937–1945) followed the course of action suggested by Stone’s footnote and established the first significant body of civil liberties law in American history.

Harlan Fiske Stone was appointed Attorney General by President Warren G. Harding in 1924, and on May 13, 1924 Stone ordered J. Edgar Hoover to clean up the corrupt Bureau of Investigation (later the FBI) and to end the Bureau’s political spying. The FBI resumed political spying on August 24, 1936 at the direction of President Franklin D. Roosevelt.

In the note, the Court raised the question of “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.”

Learn more about the history of the Supreme Court: Peter Irons, A Peoples’ History of the Supreme Court (1999)

Learn more: Michael Perry, We the People: The Fourteenth Amendment and the Supreme Court (1999)

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