The Death of Justice Ruth Bader Ginsburg: Initial Considerations for Congress

Legal Sidebari

The Death of Justice Ruth Bader Ginsburg:

Initial Considerations for Congress

September 21, 2020

On September 18, 2020, Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court

of the United States, passed away at the age of eighty-seven, vacating a seat on the High Court that she

had held for twenty-seven years. Nominated to replace Justice Byron White in 1993, Justice Ginsburg

already had a trailblazing career as a law school professor; Supreme Court litigator; co-founder of the

American Civil Liberties Union’s Women’s Rights Project; and judge on the U.S. Court of Appeals for

the D.C. Circuit (D.C. Circuit) for thirteen years. Several of her opinions have been consequential,

including her 1996 majority opinion in United States v. Virginia, holding that women could not be denied

admission to the Virginia Military Institute on the basis of their sex. Justice Brett Kavanaugh said in a

recent statement that “no American has ever done more than Justice Ginsburg to ensure equal justice

under law for women.”

Justice Ginsburg was also noted for her pointed dissents, including in Shelby County v. Holder (2013),

where the Court struck down a key provision of the Voting Rights Act of 1965, and in Ledbetter v.

Goodyear Tire & Rubber Co. (2007), where the Court rejected a Title VII employment discrimination

claim. In more recent years, Justice Ginsburg gained recognition in popular culture, becoming known by

the moniker “the notorious RBG.” She was the subject of books, movies, and an opera, and in 2015, was

named one of Time magazine’s one hundred most influential people.

But popular characterizations of Justice Ginsburg as a “liberal firebrand,” frequently at odds with the

Court’s conservative wing, may paint an incomplete picture of the Justice’s tenure on the Court.

According to one study, Justice Ginsburg authored more majority opinions than any other Justice on the

bench during the same period as her. And despite attention garnered by her dissents, Justice Ginsburg

authored fewer dissents than Justices Stephen Breyer, Antonin Scalia, John Paul Stevens, and Clarence

Thomas during that time. Justice Ginsburg’s majority opinions, moreover, rarely involved closely divided

disputes on hot-button social and political topics. Instead, these (frequently unanimous) opinions

addressed more esoteric issues like securities law (e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd.

(2007)), criminal sentencing procedures (e.g., Ring v. Arizona (2002)), and various complex civil

procedure issues (e.g., Goodyear Dunlop Tires Operations, S.A. v. Brown (2011); Exxon Mobil Corp. v.

Saudi Basic Industries Corp. (2005); Porter v. Nussle (2002); New Hampshire v. Maine (2001); Amchem

Products, Inc. v. Windsor (1997)).

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It is likely that Justice Ginsburg’s views in closely decided Supreme Court cases will be of most interest

to Members of Congress as the Senate considers a nominee to fill her seat, as those cases may illustrate

how the Court may change in her absence. This Legal Sidebar highlights several areas of law where

Justice Ginsburg—either by authoring or joining a majority opinion or a notable dissent—proved

consequential to the trajectory of Supreme Court jurisprudence. In so doing, this post provides a broad

overview of key legal issues Congress (and, more specifically the Senate through its advice-and-consent

role) may consider as it reflects on Justice Ginsburg’s jurisprudence and how her eventual successor

might shape the future of the Court.

Justice Ginsburg’s Jurisprudence

During her more than quarter-century on the Court, Justice Ginsburg encountered nearly every major

flashpoint of modern American legal debate—from abortion, to voting rights, to key civil liberties issues.

In a statement issued shortly after Justice Ginsburg’s death, her colleague, Justice Elena Kagan, stated

that Justice Ginsburg worked every day “to ensure that this country’s legal system lives up to its ideals

and extends its rights and protections to those once excluded.”

The following highlights Justice Ginsburg’s approach to several issues that have traditionally resulted in a

closely divided Court:

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Abortion: During and prior to her three decades on the High Court, Justice Ginsburg was

a consistent opponent of measures that she viewed as unduly restricting abortion access.

While the Court’s 1973 decision in Roe v. Wade recognized that the Constitution protects

a woman’s decision to terminate her pregnancy, it rooted this protection in privacy

interests protected by the Fourteenth Amendment’s Due Process Clause. In her various

speeches and writings on abortion, including her dissenting opinion in Gonzales v.

Carhart (2007), Justice Ginsburg contended that the constitutional infirmity of abortion

restrictions instead “center[s] on a woman’s autonomy to determine her life’s course, and

thus to enjoy equal citizenship stature.” In recent years, Justice Ginsburg was part of fiveJustice majorities in June Medical Services LLC v. Russo (2020) and Whole Woman’s

Health v. Hellerstedt (2016), which struck down various state regulations of abortion

providers.

Administrative Law: In recent years, some Justices have called for the Court to narrow

the degree of judicial deference given to agencies’ interpretations of the statutes and

regulations they administer. Justice Ginsburg was among those members of the Court

who favored maintaining its existing doctrinal approach to these issues. In her majority

opinion in EPA v. EME Homer City Generation, L.P. (2014), where the Court reversed a

decision authored by then-D.C. Circuit Judge Kavanaugh, Justice Ginsburg cited Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., which she called “the

pathmarking decision [that] . . . bears a notable resemblance to the cases before us,” for

the proposition that the Court “accord[s] dispositive effect to an agency’s reasonable

interpretation of ambiguous statutory language.” She also was part of the five-Justice

majority in Kisor v. Wilkie (2019), which affirmed the continued application of the Auer

doctrine, which generally instructs courts to defer to agencies’ reasonable construction of

ambiguous regulatory language. That said, Justice Ginsburg was part of a five-four

majority in several cases that invalidated specific executive branch actions as violating

general administrative law principles. These included Department of Commerce v. New

York (2019), rejecting the Commerce Secretary’s attempt to include a citizenship question

on the 2020 census, and Department of Homeland Security (DHS) v. Regents of the

University of California (2020), ruling that DHS acted improperly when it rescinded the

Deferred Action for Childhood Arrivals initiative.

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Affirmative Action: The High Court considered several significant cases involving raceconscious policies during Justice Ginsburg’s tenure. In these cases, Justice Ginsburg

authored or joined opinions that argued that the government has wide latitude to address

historical and systemic discrimination against racial minorities. For example, she

dissented from the Court’s ruling in Adarand Constructors, Inc. v. Peña (1995), which

held that even “benign” race-based classifications by the federal government intended to

help disadvantaged groups are subject to “strict scrutiny.” In several closely divided

cases, Justice Ginsburg joined majorities in upholding race-conscious school admission

policies, such as those at issue in Grutter v. Bollinger (2003) and Fisher v. University of

Texas at Austin (2016), and dissented in another case, Gratz v. Bollinger (2003), where a

bare majority held a different race-conscious college admission policy invalid. Justice

Ginsburg was also one of four dissenting Justices in Parents Involved in Community

Schools v. Seattle School District No. 1 (2007), where a fractured Court invalidated two

school districts’ assignment plans, which sought to improve racial diversity by

considering a student’s race as a factor in determining which school the child could

attend.

Criminal Law & Procedure: Criminal law and procedure is an area where Supreme

Court alignments are not divided neatly between the Court’s more conservative and

liberal wings, and Justice Ginsburg was an important vote in many such cases. In Mont v.

United States (2019), for example, Justice Ginsburg authored an opinion joined by four

members of the Court’s conservative wing, holding that a criminal defendant’s period of

supervised release following incarceration may be tolled if the defendant is later charged

with another crime and placed in pretrial detention. She authored several of the Court’s

opinions in recent decades on criminal sentencing matters (e.g., Oregon v. Ice (2009);

Kimbrough v. United States (2007); Cunningham v. California (2007); Ring v. Arizona

(2002)). And in United States v. Booker (2005), Justice Ginsburg cast deciding votes for

the case’s controlling opinions that held that the federal sentencing guidelines’ mandatory

enhancements were unconstitutional and the remaining guidelines were thereby rendered

“effectively advisory.” On Fourth Amendment matters, Justice Ginsburg frequently

joined opinions constraining the government’s ability to conduct warrantless searches,

including controlling or concurring opinions that recognized technology-assisted

surveillance as posing unique threats to privacy expectations (e.g., Carpenter v. United

States (2018); United States v. Jones (2012); Kyllo v. United States (2001)). Justice

Ginsburg also joined Court opinions prohibiting the imposition of capital punishment

against juvenile offenders (Roper v. Simmons (2005)) and the cognitively disabled (Atkins

v. Virginia (2002)), as well as sentences of life imprisonment without parole for juveniles

(Peugh v. United States (2013)). She was also one of three Justices who, in a dissenting

opinion in Glossip v. Gross (2015), argued that the death penalty was incompatible with

the Eight Amendment’s prohibition on cruel and unusual punishment.

Elections & Voting Rights: Justice Ginsburg also weighed in on issues related to the

integrity of elections and protection of voting rights, frequently in dissent. She dissented

from the Court’s per curiam decision in Bush v. Gore (2000), which found that “the use of

standardless manual recounts” in Florida during the contested 2000 presidential election

violated the Equal Protection Clause. Justice Ginsburg acknowledged that the Court’s

construction of Florida law was “reasonable,” but asserted that the Court should have

deferred to the Florida Supreme Court’s interpretation of its own state’s law and allowed

the recount to proceed. In another landmark case, Citizens United v. Federal Election

Commission (2010), a five-Justice majority held that a statute prohibiting independent

election expenditures by corporations and unions violated the First Amendment’s free

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speech protections. Justice Ginsburg joined Justice Stevens’s opinion dissenting from this

holding, arguing that it “threatens to undermine the integrity of elected institutions across

the Nation.” With regard to voting rights, in Shelby County v. Holder (2013), the Court

struck down a preclearance provision of the Voting Rights Act of 1965 as exceeding

Congress’s authority to enforce the Fourteenth and Fifteenth Amendments. In her dissent,

Justice Ginsburg surmised that “throwing out preclearance when it has worked and is

continuing to work to stop discriminatory changes is like throwing away your umbrella in

a rainstorm because you are not getting wet.” In addition to her dissents, in Buckley v.

American Constitutional Law Foundation (1999) Justice Ginsburg authored a majority

opinion striking down certain Colorado regulations related to ballot initiatives as

violating the First Amendment because they were “excessively restrictive of political

speech.” More recently in Arizona State Legislature v. Arizona Independent Redistricting

Commission (2015), Justice Ginsburg authored a five-four opinion that held it was

constitutionally permissible for Arizona voters, through a ballot initiative, to transfer

redistricting authority from the state legislature to an independent commission.

Environmental Law: Justice Ginsburg authored or joined several consequential opinions

in environmental law cases during her time on the High Court. Two of her major opinions

concerned the justiciability of environmental claims. In Friends of the Earth, Inc. v.

Laidlaw Environmental Services, Inc. (2000), she wrote that constitutional standing

requirements were satisfied in a suit alleging that the defendant’s discharge of pollutants

injured plaintiffs’ “recreational, aesthetic, and economic interests.” And in American

Electric Power Co. v. Connecticut (2011), Justice Ginsburg wrote for a unanimous court

that the Clean Air Act foreclosed any federal common law public nuisance claims that

plaintiffs might otherwise raise against carbon monoxide-emitting power plants. Justice

Ginsburg was also involved in several cases that more closely divided the Court. In EPA

v. EME Homer City Generation, L.P. (2014), Justice Ginsburg authored an opinion

upholding an EPA rule under the Clean Air Act related to air pollution crossing state

lines. In the landmark environmental case Massachusetts v. EPA (2007), Justice Ginsburg

was part of a five-Justice majority ruling that greenhouse gases fit within the Clean Air

Act’s definition of “air pollutant,” and that states could challenge the EPA’s failure to

regulate those emissions adequately. Justice Ginsburg joined the Court’s more liberal

wing to dissent in Michigan v. EPA (2015), which held that the EPA unreasonably deemed

cost irrelevant with respect to certain regulations of power plants. In the Court’s fractured

decisions concerning “waters of the United States” governed by the Clean Water Act,

Justice Ginsburg was part of a four-Justice dissenting bloc that argued that the term

should be interpreted broadly to permit regulating agencies to address pollution not only

affecting navigable waters, but also wetlands adjacent to those waters’ tributaries

(Rapanos v. United States (2006); Solid Waste Agency of Northern Cook County v. U.S.

Corps of Army Engineers (2001)).

Freedom of Religion: Justice Ginsburg has, in some cases, expressed concern about

protecting religious freedoms, particularly those of religious minorities. In 1984, as a

judge on the D.C. Circuit, she was joined by her colleague, then-Judge Scalia, in arguing

that the appellate court should have reconsidered the claim of an Air Force officer who

wanted to wear a yarmulke on duty, calling the military’s decision not to accommodate

his religious faith “callous.” In her dissenting opinion in the fractured case of American

Legion v. American Humanist Ass’n (2019), she argued that a state violated the

Establishment Clause by displaying a large Latin cross as a w ar memorial. She rejected

the state’s claims that the cross could be seen as a secular symbol, observing it had never

been “perceived as an appropriate headstone or memorial for Jewish soldiers and others

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who did not adhere to Christianity.” At the same time, Justice Ginsburg has argued

against “religion-based opt-outs” from generally applicable laws. Dissenting from the

Court’s five-four opinion in Burwell v. Hobby Lobby Stores, Inc. (2014), she would have

denied a religious accommodation for a corporation that objected to having to provide

health-insurance coverage for certain methods of contraception—also the subject of

Justice Ginsburg’s last dissent in Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania (2020). She also rejected religious objections to complying with

nondiscrimination policies—a recurring issue before the Supreme Court—in her majority

five-four opinion in Christian Legal Society v. Martinez (2010) and her dissent in

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

National Security: The Court has considered numerous cases implicating national

security matters in recent decades. In these cases, many of which closely split the Court,

Justice Ginsburg aligned with those Justices who were less deferential to judgments of

the political branches, and in particular the executive branch. Recently, in Trump v.

Hawaii (2018), a five-Justice majority afforded broad deference to presidential security

determinations in upholding the Trump Administration’s “Travel Ban” on certain foreign

travelers from Muslim-majority countries. Justice Ginsburg, however, joined a dissent

that argued the action was unconstitutionally motivated by religious animus. Justice

Ginsburg also dissented from Court opinions that effectively foreclosed various lawsuits

related to counterterrorism policies pursued in the aftermath of the September 11, 2001

terrorist attacks (Ziglar v. Abbasi (2017); Clapper v. Amnesty International USA (2013);

Ashcroft v. Iqbal (2009)). With regard to the President’s war powers, Justice Ginsburg

was part of a majority of Justices who questioned the Executive’s ability to detain

indefinitely “enemy combatants” on U.S. soil without review; they also ruled that

military tribunals established by presidential order to try enemy belligerents were invalid

because they failed to afford baseline statutory protections. Justice Ginsburg also joined

the Court’s opinion in Boumediene v. Bush (2008), which held that the constitutional writ

of habeas corpus extended to foreign nationals held as enemy belligerents at the

Guantanamo Bay detention facility.

Powers of Congress: Arguably one of the most notable aspects of Justice Ginsburg’s

jurisprudence was her opposition to the trajectory of the Court’s opinions during the

Rehnquist and Roberts eras that served to limit the reach of congressional power. Justice

Ginsburg joined dissents in two key decisions of the Rehnquist Court that established

parameters on the exercise of Congress’s commerce power: United States v. Lopez (1995)

and United States v. Morrison (2000). In a partial dissent in National Federation of

Independent Business v. Sebelius (2012), moreover, she expounded on her views

regarding the broad scope of Congress’s power to regulate commerce, urging judicial

deference to congressional judgments “in the economic and social welfare realm.” She

likewise dissented in two major decisions that limited Congress’s powers under the

Reconstruction-era amendments, City of Boerne v. Flores (1997) and Shelby County v.

Holder (2013), writing in Shelby County that Congress’s findings regarding the

appropriateness of voting rights legislation were entitled to “substantial deference” and

should prompt “unstinting approbation” by the Court. Justice Ginsburg also joined or

authored dissents to Court opinions that barred congressional directives to state executive

and legislative officials (Murphy v. NCAA (2018); Printz v. United States (1997)) and

limited Congress’s power to subject state governments to monetary damages remedies

(e.g., Seminole Tribe of Florida v. Florida (1996); Alden v. Maine (1999)). On Congress’s

powers to limit the President’s ability to fire subordinates, Justice Ginsburg dissented in

several narrowly divided cases where the Court recognized constitutional limits to

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Congress’s ability to shield certain executive officials from at-will removal by the

President or a superior officer (e.g., Seila Law LLC v. Consumer Financial Protection

Bureau (2020); Lucia v. Securities & Exchange Commission (2018); Free Enterprise

Fund v. Public Co. Accounting Oversight Board (2010)). A notable exception to Justice

Ginsburg’s deference to Congress involved laws she believed impeded upon the

constitutional rights of individuals. For example, in the immigration field—where

congressional power is substantial—Justice Ginsburg joined the majority opinion in

Zadvydas v. Davis (2001), where a closely divided Court recognized that substantive due

process considerations prevent immigration authorities from indefinitely detaining a

deportable alien. She also joined four other Justices in Sessions v. Dimaya (2018),

concluding that a term in a statutory provision for alien removal was unconstitutionally

vague.

Second Amendment: Although Justice Ginsburg was not a prominent author of

decisions involving the Second Amendment, she was part of a four-Justice bloc that

dissented from the Court’s ruling in District of Columbia v. Heller (2008), which held

that the Second Amendment protects an individual (as opposed to a collective) right to

bear and keep arms. She also joined the dissenting Justices two years later in McDonald

v. City of Chicago (2010), where the Court held that the Second Amendment applied to

state and local governments through the Fourteenth Amendment. Justice Ginsburg later

joined other Justices in declining opportunities to revisit Heller’s application, including in

the denial of ten certiorari petitions this past term that called for the Court to review (and

possibly invalidate) challenged state concealed-carry laws, handgun permit requirements,

and so-called “assault weapons” and handgun restrictions.

Sex & Gender: As noted, three years after joining the Court, Justice Ginsburg authored

the majority opinion in United States v. Virginia (1996), ruling that Virginia Military

Institute violated the Equal Protection Clause by refusing to admit women. Over a decade

later, Justice Ginsburg dissented from the Court’s ruling in Ledbetter v. Goodyear Tire &

Rubber Co. (2007), which rejected Ledbetter’s Title VII employment discrimination

claim. Justice Ginsburg argued that Ledbetter proved she received lower pay because of

her sex, and called on Congress to correct the majority opinion’s “parsimonious reading”

of Title VII. Congress passed the Lilly Ledbetter Fair Pay Act in 2009, seeking to reverse

the majority’s opinion. She was part of five-Justice majorities in United States v. Windsor

(2013) and Obergefell v. Hodges (2015) that struck down federal and state laws barring

recognition of same-sex marriage. And this past term, in Bostock v. Clayton County

(2020), she joined the majority in construing Title VII’s prohibition on sex discrimination

to cover discrimination because of sexual orientation or gender identity.

Nomination & Confirmation Process

As Justice Ginsburg’s predecessor Justice White once noted, “every time a new justice comes to the

Supreme Court, it’s a different court.” Article II of the Constitution gives the President the authority to

appoint judges to the Supreme Court with the Senate’s advice and consent. Prior to the unexpected death

of Justice Antonin Scalia in February 2016—creating a vacancy filled by Justice Neil Gorsuch in April

2017—the last such vacancy during a presidential election year occurred in 1968, when Chief Justice Earl

Warren submitted a resignation letter less than six months before the general election. Chief Justice

Warren’s seat was not filled until the following year. The last time a Supreme Court vacancy arose in an

election year and the Senate approved a new appointee to the Court in that same year was 1932, when the

seat vacated by the retirement of Justice Oliver Wendell Holmes, Jr. in January of that year was filled by

Justice Benjamin Cardozo two months later.

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On September 9, 2020, President Trump released a list of possible Supreme Court nominees, the fourth

such list he has issued since his presidential campaign in 2016. In a statement shortly after Justice

Ginsburg’s passing, Senate Majority Leader, Mitch McConnell, stated that “President Trump’s nominee

will receive a vote on the floor of the United States Senate.” President Trump has indicated that the

nominee will likely be a woman.

As with past vacancies on the High Court, CRS will be preparing products examining the vacancy created

by Justice Ginsburg’s passing and any nominee to fill her seat on the Court. CRS has also published

products reviewing procedural issues caused by vacancies and products related to congressional hearings

on judicial nominees, including the appointment process and the questioning of nominees.

Author Information

Valerie C. Brannon

Legislative Attorney

Caitlain Devereaux Lewis

Section Research Manager

Michael John Garcia

Section Research Manager

Disclaimer

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