There are various complaints concerning the length of judicial opinions and law review articles. The reasons suggested for such verbosity are varied, including the reduction in the number of Supreme Court opinions (not quite the case for lower courts, though some are concerned with unpublished opinions -- not a new thing, thus we see various citations of 19th Century opinions with notations that they are unpublished, or perhaps only barely described) with the reverse trend of increase in number of law clerks. Law review articles are somewhat different animals, but modern technology and expansion of law schools overall can help explain things there as well.
Writing two hundred page law review articles is not quite revolutionary (I was just reading about a long in effect law review article on the Dred Scott Case by Sen. Douglas submitted to some popular magazine), but much hard in the long hand days of the past. Extended pamphlets (think the Federalist Papers) were a common resource as well. Likewise, there were some pretty long opinions when justices didn't even have law clerks (but, what else did they have to do in the 19th Century, anyway?) ... in fact, in comparison, some of those today are rather short. [CJ Rehnquist and now CJ Roberts made a concerted effort toward short opinions.] And, sure, law reviews and such had notes on the margins and so forth. Nonetheless, they are going crazy these days, aside from the likes of Justice Breyer (who worked on Justice Goldberg's concurrence in Griswold v. Connecticut ... a sort of in text note). Breyer is on record for trying to avoid footnotes at all.
A quite possible task. Footnotes have various functions. My opus (see side panel) has tons of them. Why? Partly, because I have a soft spot for them. I recall an elementary teacher who sometimes had a tendency to go on asides when giving spelling tests -- some word called to mind something else, etc. Loved that ... just too much fun information out there, huh? And, footnotes sometimes have this function -- they are sort of extended asides that are not quite on point, but still very interesting. Footnotes also provide a sort of bibliographical resource, citing and commenting on other sources, including case law in this area. But, string cites can be put in the text with a summary of the principle set forth.
On the other hand, footnotes provide a place to put in little gems, at times in place to dispute comments in other opinions (actually taking the dissent seriously is a good thing, often not done) or try to deal with troubling exceptions and/or complications to your reasoning. This might be necessary though it can be a way to hide complications or have petty disputes (often in petty terms) with other justices. Thus, they can be a bad thing too (well, in a sense ... this all is fun if looked at in the right frame of mind), as can the related situation (again not really new -- see the Taney Era) of a bunch of concurring opinions the confuse what exactly was decided. This is true even if some of them are rather fascinating.
Footnotes also can be anal. I referenced a law review article on Justice Stevens' role in terrorist cases. The article had a footnote pointing out the senior justice in the majority and dissent assigned the corresponding opinion. I reckon anyone reading the article would know this. We also have cases of the Supreme Court citing in footnotes the text and/or location of constitutional principles like free speech. The absurdity really is shown in a piece by Randy Barnett on Lawrence v. Texas that cites "the plain language of the Ninth Amendment" and footnotes it as "U.S. Const. amend. IX." I'd add that the sentence before spoke of the "Constitution," so we know this is not the Ninth Amendment to some real estate contract or something.
[The Cato Supreme Court Review article is pretty interesting. One thing it notes is that part of "due process" is judicial review ensuring that the law was rightly enacted, in other words, (as noted back in the 1850s) the legislature can unduly enact a law. Substantive due process is a confusing term, but it is far from ridiculous. The right (or limitation of power), however, is not just the Due Process Clause. The "liberty" often comes elsewhere, including the Ninth Amendment. Such is the case if the wrongful law is "silly"* or not.]
Justice Holmes apparently once said that he stood up while composing his opinions as a means to ensure that they would not be too long. Buck v. Bell (sterilization of "imbeciles" upheld -- unfortunately, she was mostly like not mentally retarded at all ... her daughter surely was not) is but one example of his opinions being a bit too thin. Some middle path can be taken. And, I'm not really too concerned -- except for the plurality of concurrences confusing the law -- about verbosity in the areas covered by this entry. Clarity of reasoning is quite useful all the same -- I usually enjoy the short statements of common sense put forth by one of my readers.
This can be done with footnotes ... just with some degree of due care shown.
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* This word is sometimes misused. Justice Stewart in Griswold (contraceptives) and Thomas in Lawrence (consensual intimate relations -- let's not do what the majority itself warns against and call it a "sodomy" case) wrote in dissent that they found the particular law "silly." Silly had a flavor of the ridiculous.
It does not just mean irrational or a waste of time. The laws at issue in those two cases really were not "silly" in many senses of the term. They were clear expressions of public morality, and Justice Scalia (in an opinion Thomas somewhat inconsistently joined) said as much in his own Lawrence dissent. The true problem is that the particular expression is illegitimate as a matter of public policy. To cite Barnett, an expansion of the police power beyond legitimate bounds.
The couple in Lawrence was caught in the act, a rarity ... and unlucky insistence. All the same, the public expression against homosexual conduct overall is an important matter. It promotes certain mores as well as affects any number of other matters (for instance, inhibits civil rights protections since the couple technically are law breakers; also custody matters etc.) though by how much is open to debate. Not quite comparable, but think of a month in honor of black history. Surely, this is not just "silly," but sends a particular message and encourages certain actions. Likewise, the recent Senate resolution making English the national language is not "silly" ... right or wrong.
It's an abuse of the term. And, not just a silly one.