“The core issue of “judicial scrutiny” is now established — better than we had dreamed — in what will be known as Famous Footnote #27 (p56). “
Prior to the footnot, Scalia slams the idea of using a footnote to establish legal precedence.
He stated his opinion, IOW, in the footnote, but made sure it was debateable.
It’s not the footnote that establishes legal precedent, it’s the fact that the First Amendment is recognized as an enumerated individual right.