Today’s #stampoftheday focuses on the “most important footnote” in constitutional law, which was part of a Supreme Court case involving adulterated milk and a decision written by a justice known as one of the court’s “Three Musketeers.”

A 3-cent stamp issued in 1948, it portrays the footnote’s author, Harlan F. Stone, who was an Associate Supreme Court Justice from 1925 until 1941, and then was the Chief Justice from 1941 until he died in 1946. (Although the stamp was issued on August 25, 1948, it’s today’s stamp because I recently rediscovered a stash of mailing labels for packages of new stamps that were part of my late father’s collection. These included one for this stamp indicating that it couldn’t be sold until August 26.)

The footnote in question came in United States v. Carolene Products, an otherwise unremarkable case, decided in 1938. In its decision, the Court upheld a federal statute that made it illegal to ship “filled milk,” which is milk where coconut oil replaced the butter fat found in regular milk. The court’s decision made it clear that it was not the role of the judiciary to closely review laws that impose economic regulations. This was important because it confirmed a major ideological shift in the court, which until about for years had rejected many attempts to regulate businesses including many New Deal laws passed after Franklin Roosevelt took office.

The milk case opinion was written by Stone, who had been appointed by Republican Calvin Coolidge but who, along with Justices Brandeis and Cardozo made up a liberal wing of the court often called the Three Musketeers. Although he believed the court should give more deference to legislators, he did not want to fully embrace judicial restraint because he believed that would make too easy for Congress (or state legislatures) to infringe on civil liberties and civil rights.

So he added a footnote (known as footnote four) that distinguished between statutes dealing with economic and social-welfare legislation and those dealing with “the very essence of ordered liberty.” In those cases, he wrote, “the presumption of constitutionality” should be set aside. Instead, legislation should be “subjected to more exacting judicial scrutiny” if it “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” or if it is “directed at particular religious, or national, or racial minorities” that could be victims of “prejudice.” In short, although laws about milk did not have to be subjected to exacting judicial review, laws about rights and liberties should be subject to such scrutiny.

In a 2013 New Yorker article, Lincoln Caplan wrote that in making this distinction, Stone “addressed a question that had been paramount since the founding of the Republic regarding the role of the judiciary in American governance: Why isn’t it anti-democratic for unelected judges to overturn decisions of elected officials? It isn’t anti-democratic, the Justice said, if judges follow the principles of judicial review framed by the footnote.”

Moreover many legal scholars, such as David Strauss, contend that this modest footnote “defined the federal courts’ agenda for a generation-one of the most momentous generations in the history of the Supreme Court and the federal judiciary.” Notably, according to Caplan, the Warren Court’s landmark rulings – such as banning segregation in public schools and establishing the standard of one person, one vote-“reflect the Stone view that federal courts can intervene when the political process marginalizes or shuts out some groups.”

But in recent decades, the court has moved away from this approach. In a 2013 speech, Justice Ruth Bader Ginsburg contended that if the court had followed this approach, it would have agreed with her view that college and university affirmative-action plans were acceptable. Caplan added that by the same logic, several other “watershed rulings of the Roberts Court, in particular, run flatly counter to footnote four: the Court has struck down voluntary school-integration plans, major campaign-finance regulations, and a critical provision of the Voting Rights Act, for example, in each case undermining rather than enhancing American democracy.”

“Those rulings,” Caplan concluded, “and many others by the current Court, lack what the footnote strikingly provided: 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.”

Here’s hoping that the current court takes another look at – and again seriously considers – Stone’s most important aside.

Be well, stay safe, fight for justice and work for peace.