Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data

Justice Ruth Bader Ginsburg as a Deciding

Vote on the Supreme Court: Select Data

September 25, 2020

Congressional Research Service

https://crsreports.congress.gov

R46546

SUMMARY

Justice Ruth Bader Ginsburg as a Deciding Vote

on the Supreme Court: Select Data

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. Over more than a quarter-century on the

Court, Justice Ginsburg encountered nearly every major flashpoint of modern American legal

debate, including many issues on which the sitting Justices were closely divided.

R46546

September 25, 2020

Michael John Garcia

Section Research Manager

Kate R. Bowers

Legislative Attorney

As Justice Ginsburg’s predecessor Justice Byron White observed, “every time a new justice

comes to the Supreme Court, it’s a different court.” It is likely that Justice Ginsburg’s views in

closely decided Supreme Court cases will be of interest to Members of Congress as the Senate considers a nominee to fill her

seat, as those cases may illustrate how the Court could change in her absence. Many recent retrospectives of Justice

Ginsburg’s career have highlighted her dissenting opinions in cases where she and other Justices in the more liberal wing of

the Court were at odds with a more conservative majority. But focusing on Justice Ginsburg’s dissents may paint an

incomplete picture of her influence on the outcome of Supreme Court cases and the effect that her replacement could have

upon the trajectory of the Court’s jurisprudence. Justice Ginsburg frequently authored or joined majority opinions for the

Court, and she was a deciding vote for the majority position in numerous closely divided cases. While Justice Ginsburg was

less likely to be a deciding vote than Justice Anthony Kennedy, who retired from the bench in 2018 after having been the

pivotal vote in 186 cases during the Roberts Court era, she was still a deciding vote in 112 cases from the date of Chief

Justice Roberts’s elevation to the Court to the date of her passing. This report includes several tables relating to cases where

Justice Ginsburg cast a deciding vote in the Roberts Court era. The tables compile cases involving constitutional questions,

issues governed by statute (including not only questions of statutory interpretation but also agency actions taken pursuant to

statutory authority, as well as judicial and executive branch rules and actions concerning procedural matters governed by

statute), and other matters.

Congressional Research Service

Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data

Contents

Tables

Table 1. Justice Ruth Bader Ginsburg As a Deciding Vote: Constitutional Law Decisions ........... 4

Table 2. Justice Ruth Bader Ginsburg As a Deciding Vote: Statutory Law Decisions ................ 16

Table 3. Justice Ruth Bader Ginsburg As a Deciding Vote: Miscellaneous Legal Decisions ....... 25

Contacts

Author Information ....................................................................................................... 27

Congressional Research Service

Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data

n 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. 1 Over more than a

quarter-century on the Court, Justice Ginsburg encountered nearly every major flashpoint of

modern American legal debate, including many issues on which the sitting Justices were closely

divided. 2

O

As Justice Ginsburg’s predecessor Justice Byron White observed, “every time a new justice

comes to the Supreme Court, it’s a different court.”3 It is likely that Justice Ginsburg’s views in

closely decided Supreme Court cases will be of interest to Members of Congress as the Senate

considers a nominee to fill her seat, as those cases may illustrate how the Court could change in

her absence. Many recent retrospectives of Justice Ginsburg’s career have highlighted her

dissenting opinions in cases where she and other Justices in the more liberal wing of the Court

were at odds with a more conservative majority. 4 But focusing on Justice Ginsburg’s dissents may

paint an incomplete picture of her influence on the outcome of Supreme Court cases and the

effect that her replacement could have upon the trajectory of the Court’s jurisprudence. Justice

Ginsburg frequently authored or joined majority opinions for the Court, and she was an essential

vote for the majority in numerous closely divided cases. 5 While Justice Ginsburg was less likely

to be a deciding vote in closely divided cases than Justice Anthony Kennedy, who retired from the

bench in 2018 after having been the pivotal vote in 186 cases during the Roberts Court era, 6 she

1 See SUP REME COURT OF THE UNITED STATES, Biography of Associate Justice Ruth Bader Ginsburg,

https://www.supremecourt.gov/about/biographyGinsburg.aspx (last viewed Sept. 24, 2020).

2 For additional discussion of Justice Ginsburg’s jurisprudence on issues that closely divided t he Court, see CRS Legal

Sidebar LSB10537, The Death of Justice Ruth Bader Ginsburg: Initial Considerations for Congress, by Valerie C.

Brannon, Michael John Garcia, and Caitlain Devereaux Lewis.

3 See Clifford May, On Judges and Justice: Byron White Reflects on Court and Critics, ROCKY MTN . NEWS (June 30,

1996), at 69A.

4

See. e.g., Adam Liptak, Justice Ginsburg’s Judicial Legacy of Striking Dissents, N.Y. T IMES (Sept. 18, 2020),

https://www.nytimes.com/2020/09/18/us/rbg-accomplishments.html (“As part of the Supreme Court’s four-member

liberal wing, [Justice Ginsburg] did her most memorable work in dissent .”); David Cohen and Josh Gerstein, Justice

Ruth Bader Ginsburg Dies at 87, P OLITICO (Sept. 18, 2020), https://www.politico.com/news/2020/09/18/justice-ruthbader-ginsburg-034990 (discussing Justice Ginsburg’s influence, including on the trajectory of Supreme Court

jurisprudence on sex and gender issues, while observing that “ [h]er influence went far beyond gender cases. . . . As the

frequency and barbed tone of her dissents increased later in her career, she became a liberal icon, sometimes dubbed

‘T he Notorious RBG’”); Richard Wolf, Justice Ruth Bader Ginsburg’s Top Opinions and Dissents, from VMI to Voting

Rights Act, USA T ODAY (Sept. 18, 2020), https://www.usatoday.com/story/news/politics/2020/09/18/i-dissent-justiceruth-bader-ginsburgs-most-memorable-opinions/2661426002/ (“ Throughout her career, Ginsburg’s diminutive

presence belied her titanic influence on the law, first as the nation’s preeminent litigator for women’s rights, and more

recently as the leader of the high court’s liberal bloc, where she served as a bulwark against an increasingly

conservative majority.”).

5

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

the same period as her. Adam Feldman, Justice Ginsburg Leaves a Lasting Legacy on the Court, EMP IRICAL SCOT US

(Sept. 19, 2020), https://empiricalscotus.com/2020/09/19/justice-ginsburg-leaves-a-lasting-legacy-on-the-court/. And

even in the Roberts Court era, when Justice Ginsburg was somewhat more likely to be in dissent than in earlier years,

she was still part of the deciding majority in nearly 80 percent of the cases considered by the Court . See id. (including

tables showing that Justice Ginsburg was in the majority in 865 cases during the Rehnquist Court era (roughly 81.4% of

considered cases from the October 1993 term through the October 2004 term), compared to 902 cases since Chief

Justice Roberts’s elevation to the Court (roughly 78.6% of the cases decided from the October 2005 term onward)).

6 See CRS Report R45256, Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, by Andrew

Nolan, Kevin M. Lewis, and Valerie C. Brannon, at Appendix (using same methodology as this report to identify cases

in which Justice Kennedy was a deciding vote from the October 2015 term until Justice Kennedy’s retirement from the

High Court in 2018).

Congressional Research Service

1

Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data

was still a deciding vote in 112 cases from the date of Chief Justice Roberts’s elevation to the

Court to the date of her passing. 7

This report includes several tables relating to cases where Justice Ginsburg cast a deciding vote in

the Roberts Court era. For purposes of the tables, Justice Ginsburg is considered to have cast a

“deciding vote” any time she authored or joined a majority or plurality opinion or concurred in

the result of a case where the Justices were divided either 5-4, 5-3, 4-3, or 4-2 on one or more

issues. 8 Per curiam opinions are included only if they resolved an appeal pending before the

Court. 9

Table 1 identifies cases primarily centering on questions of constitutional interpretation in which

Justice Ginsburg cast a deciding vote. Table 2 includes cases mainly addressing questions of

statutory interpretation—including agency actions taken pursuant to statutory authority, as well as

judicial and executive branch rules and actions concerning procedural matters governed by

statute—in which Justice Ginsburg cast a deciding vote. Table 3 compiles closely divided cases

that do not fall neatly into either of the prior tables (e.g., cases centering on interstate compacts or

the interpretation of treaties with Indian tribes). Each Table also identifies (1) the statute,

constitutional provision, or other source of law primarily at issue in the case; and (2) Justice

Ginsburg’s position on the key issue in the case. The cases in these three tables are listed

alphabetically by year, and are categorized under the following subject areas:





Abortion Law

Administrative Law



Business Law (including issues arising in antitrust, banking, bankruptcy and debt

collection, consumer law, contract law, intellectual property law, and securities

law)



Civil Rights Law (including issues arising under the Fourteenth Amendment and

civil actions brought under 42 U.S.C. §1983)

7 Cases preceding Chief Justice Roberts’s elevation to the Supreme Court are less likely to reflect the current dynamics

of the Court—and, by extension, are less likely to illuminate the effect that Justice Ginsburg’s successor might have on

those dynamics. See, e.g., Caitlin E. Borgmann, Holding Legislatures Constitutionally Accountable Through Facial

Challenges, 36 HASTINGS CONST. L.Q. 563, 589 (2009) (opining that “the Roberts Court has heralded a rightward

ideological shift on the bench, from a split in which Justice O’Connor served as the swing vote and Justice Kennedy

was counted in the conservative half, to one in which a solidly conservative four face off against the four more liberal

Justices, with Justice Kennedy functioning as the swing vote”); Amelia T homson-DeVeaux, The Suprem e Court Might

Have Three Swing Justices Now, FIVE T HIRTY EIGHT (July 2, 2019) (positing that with Justice Kennedy’s retirement and

the ascension of Justices Gorsuch and Kavanaugh to the High Court in recent years, there may be “ a newly cemented

conservative majority on the court” and that while these new Justices shifted the Court’s center rightward, they are not

uniform in their individual approach to issues, suggesting that “the days of a single ‘swing’ justice may be over”).

8 T hese cases were obtained using three methods:

• searching Washington University School of Law’s Supreme Court Database for 5-4, 5-3, 4-3, and 4-2 cases in

which Justice Ginsburg voted with the majority or plurality from the October 2005 through October 2019

terms;

• referencing SCOT USBlog’s “ Stat Pack” compendia of 5-4 cases from October T erm 2005 onward, available at

http://www.scotusblog.com/reference/stat -pack/ (last visited Sept. 23, 2020); and

• searching LexisNexis’s database of Supreme Court cases from October 2005 onward in which one or more

Justices recused themselves.

9 For example, the tally excludes Laboratory Corp. of America Holdings v. Metabolite Lab oratories, Inc., 548 U.S. 124

(2006) (per curiam opinion joined by Alito, Ginsburg, Kennedy, Scalia and T homas, JJ., dismissing writ of certiorari as

improvidently granted).

Congressional Research Service

2

Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data





Civil Liability (including torts)

Communications Law





Criminal Law and Procedure

Education Law





Election Law

Environmental Law



Family Law





Food and Drug Law

Freedom of Association





Freedom of Religion

Freedom of Speech









Habeas Corpus

Immigration Law

Indian Law

Judicial System (including issues involving federal and state courts generally,

civil procedure, standing and justiciability, class actions, equitable remedies,

arbitration, and judicial ethics)





Labor and Employment Law

Maritime Law





Military Law

National Security





Public Benefits

Separation of Powers





Takings

Tax Law.

For purposes of brevity, no more than two subject areas are identified as relevant to a particular

case. While these categorizations are intended to provide a helpful guide to readers in identifying

the subject matters of decisions, they do not necessarily reflect the full range of legal issues a

judicial opinion may involve.

Table 1, Table 2, and Table 3 also identify the composition of Justices hearing a listed case,

dividing the members of the Court who participated in the case into two categories: (1) Justices

making up the majority or controlling plurality, including those who concurred with the Court’s

judgment; and (2) Justices who dissented in whole or in part from the judgment of the Court. The

author of the primary opinion is designated with an asterisk (*). Authors of concurring and

dissenting opinions are identified with plus signs (+). Justice Ginsburg’s name has been

capitalized throughout for the reader’s convenience. For ease of reference, Justices are listed in

alphabetical order, rather than order of seniority.

Congressional Research Service

3

Table 1. Justice Ruth Bader Ginsburg As a Deciding Vote: Constitutional Law Decisions

October 2005 Term-October 2019 Term

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

June Medical

Services, LLC v.

Russo

Breyer*,

GINSBURG,

Kagan, Roberts+,

Sotomayor

Alito+,

Gorsuch+,

Kavanaugh+,

Thomas+

591 U.S. ____

(2020); 140 S.

Ct. 2103

(2020)

Fourteenth

Amendment:

Due Process

Clause

Abortion Law

Admitting privileges requirement imposed an

unconstitutional undue burden on a woman’s

choice to have an abortion.

Gundy v. United

States

Alito+, Breyer,

GINSBURG,

Kagan*, Sotomayor

Gorsuch+,

Roberts,

Thomas

588 U.S. ____

(2019); 139 S.

Ct. 2116

(2019)

Article I:

Nondelegation

Doctrine

Separation of

Powers

The Sex Offender Registration and Notification

Act’s delegation of authority to the Attorney

General to determine the applicability of

registration requirements to offenders

convicted before the statute’s enactment does

not violate the nondelegation doctrine.

Madison v.

Alabama

Breyer, Kagan*,

GINSBURG,

Roberts,

Sotomayor

Alito+,

Gorsuch,

Thomas

586 U.S. ____

(2019); 139 S.

Ct. 718

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Habeas

Corpus

The Eighth Amendment may permit executing a

prisoner who has no memory of committing his

crime, but may prohibit execution of a prisoner

who suffers from dementia or another disorder

as opposed to psychotic delusions; the case was

remanded to consider the defendant’s

competency.

United States v.

Davis

Breyer,

GINSBURG,

Gorsuch*, Kagan,

Sotomayor

Alito,

Kavanaugh+,

Roberts,

Thomas

588 U.S. ____

(2019); 139 S.

Ct. 2319

(2019)

Gun Control Act

Criminal Law

and Procedure

Residual clause in the “crime of violence”

definition in 18 U.S.C. § 924(c)(3)(B), which

covers an offense “that, by its nature, involves a

substantial risk that physical force against the

person or property of another may be used in

the course of committing the offense,” is

unconstitutionally vague.

CRS-4

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

United States v.

Haymond

Breyer+,

GINSBURG,

Gorsuch*, Kagan,

Sotomayor

Alito+,

Kavanaugh,

Roberts,

Thomas

588 U.S. ____

(2019); 139 S.

Ct. 2369

(2019)

Fifth

Amendment;

Sixth

Amendment:

Right to Jury

Trial

Criminal Law

and Procedure

18 U.S.C. § 3583(k)’s provision requiring

revocation of supervised release and authorizing

new mandatory minimum sentences for specific

crimes based on a preponderance of the

evidence violated the Fifth and Sixth

Amendment’s right to a jury trial.

Virginia House of

Delegates v.

Bethune-Hill

GINSBURG*,

Gorsuch, Kagan,

Sotomayor,

Thomas

Alito+, Breyer,

Kavanaugh,

Roberts

587 U.S. ____

(2019); 139 S.

Ct. 1945

(2019)

Article III: Case

or Controversy

Requirement

Civil

Procedure

Virginia House of Delegates lacked standing to

represent the state’s interests or, in its own

right, to appeal invalidation of a redistricting

plan.

Carpenter v.

United States

Breyer,

GINSBURG,

Kagan, Roberts*,

Sotomayor

Alito+,

Gorsuch+,

Kennedy+,

Thomas+

585 U.S. ____

(2018); 138 S.

Ct. 2206

(2018)

Fourth

Amendment

Criminal Law

and Procedure

The government conducts a search under the

Fourth Amendment and must generally obtain a

search warrant when it accesses historical cellsite location records.

Sessions v. Dimaya

Breyer,

GINSBURG,

Gorsuch+, Kagan*,

Sotomayor

Alito, Kennedy,

Roberts+,

Thomas+

584 U.S. ____

(2018); 138 S.

Ct. 1204

(2018)

Fifth

Amendment

Criminal Law

and

Procedure;

Immigration

Law

Federal criminal code’s residual clause in its

definition of “crime of violence,” as

incorporated into the Immigration and

Nationality Act’s definition of “aggravated

felony,” is unconstitutionally vague.

South Dakota v.

Wayfair, Inc.

Alito, GINSBURG,

Gorsuch+,

Kennedy*,

Thomas+

Breyer, Kagan,

Roberts+,

Sotomayor

585 U.S. ____

(2018); 138 S.

Ct. 2080

(2018)

Article I:

Commerce

Clause

Tax Law

State could require out-of-state seller with no

physical presence in the state to collect and

remit sales taxes, overruling prior Supreme

Court precedent holding to the contrary.

McWilliams v.

Dunn

Breyer*,

GINSBURG,

Kagan, Kennedy,

Sotomayor

Alito+,

Gorsuch,

Roberts,

Thomas

582 U.S. ____

(2017); 137 S.

Ct. 1790

(2017)

Fourteenth

Amendment:

Due Process

Habeas

Corpus

State did not satisfy due process requirements

when it failed to provide defendant with mental

health expert to assist in evaluating, preparing,

and presenting defense to capital murder

charges.

CRS-5

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Moore v. Texas

Breyer,

GINSBURG*,

Kagan, Kennedy,

Sotomayor

Alito, Roberts+,

Thomas

581 U.S. ____

(2017); 137 S.

Ct. 1039

(2017)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Habeas

Corpus

State court’s standard for determining whether

capital defendant was intellectually disabled did

not comport with the Eighth Amendment.

Murr v. Wisconsin

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito, Roberts+,

Thomas+

582 U.S. ____

(2017); 137 S.

Ct. 1933

(2017)

Fifth

Amendment:

Takings Clause

Takings

Courts must consider a number of factors in

determining the proper denominator for

purposes of a takings inquiry, including the

treatment of the land under state and local law,

the physical characteristics of the land, and the

prospective value of the regulated land.

Peña-Rodriguez v.

Colorado

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito+, Roberts,

Thomas+

580 U.S. ____

(2017); 137 S.

Ct. 855 (2017)

Sixth

Amendment:

Right to Jury

Trial; Fourteenth

Amendment:

Equal Protection

Clause

Criminal Law

and Procedure

The “no-impeachment” rule does not apply

when a juror makes clear statements indicating

that he relied on racial stereotypes or animus

when voting to convict a criminal defendant.

Cooper v. Harris

Breyer,

GINSBURG,

Kagan*,

Sotomayor,

Thomas+

Alito+,

Kennedy,

Roberts

581 U.S. ____

(2017); 137 S.

Ct. 1455

(2017)

Fourteenth

Amendment:

Equal Protection

Clause

Election Law;

Civil Rights

Law

North Carolina officials unconstitutionally

considered race as the predominant factor in

creating legislative districts.

Fisher v. Univ. of

Tex. Austin

Breyer,

GINSBURG,

Kennedy*,

Sotomayor

Alito+, Roberts,

Thomas+

579 U.S. ____

(2016); 136 S.

Ct. 2198

(2016)

Fourteenth

Amendment:

Equal Protection

Clause

Civil Rights

Law; Education

Law

University’s race-conscious admissions program

did not violate the Equal Protection Clause.

CRS-6

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Luis v. United

States

Breyer*,

GINSBURG,

Roberts,

Sotomayor,

Thomas+

Alito, Kagan+,

Kennedy+

578 U.S. ____

(2016); 136 S.

Ct. 1083

(2016)

Sixth

Amendment:

Right to Counsel

Criminal Law

and Procedure

Pretrial restraint of defendant’s legitimate,

untainted assets that are needed to retain

counsel of choice violates the Sixth

Amendment.

Whole Woman’s

Health v.

Hellerstedt

Breyer*,

GINSBURG+,

Kagan, Kennedy,

Sotomayor

Alito+, Roberts,

Thomas+

579 U.S. ____

(2016); 136 S.

Ct. 2292

(2016)

Fourteenth

Amendment

Abortion Law

State laws imposed an undue burden on

women’s right to seek pre-viability abortions.

Williams v.

Pennsylvania

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito, Roberts+,

Thomas+

579 U.S. ____

(2016); 136 S.

Ct. 1899

(2016)

Fourteenth

Amendment:

Due Process

Clause

Criminal Law

and

Procedure;

Judicial System

Due process compelled recusal of judge

presiding over death penalty case when the

judge previously had been involved in the case

as a prosecutor.

Ala. Legislative

Black Caucus v.

Alabama

Breyer*,

GINSBURG,

Kagan, Kennedy,

Sotomayor

Alito, Roberts,

Scalia+,

Thomas+

575 U.S. 254

(2015)

Fourteenth

Amendment:

Equal Protection

Clause

Election Law;

Civil Rights

Law

District court applied incorrect legal standards

when evaluating whether changes to electoral

districts constituted an unlawful racial

gerrymander.

Ariz. State

Legislature v. Ariz.

Indep.

Redistricting

Comm’n

Breyer,

GINSBURG*,

Kagan, Kennedy,

Sotomayor

Alito, Roberts+,

Scalia+,

Thomas+

576 U.S. 787

(2015)

Article I:

Elections Clause

Election Law

Ballot initiative creating state congressional

redistricting commission did not violate the

Constitution’s Elections Clause.

Brumfield v. Cain

Breyer,

GINSBURG,

Kagan, Kennedy,

Sotomayor*

Alito+, Roberts,

Scalia, Thomas+

576 U.S. 305

(2015)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Habeas

Corpus

Habeas corpus petitioner on death row was

entitled to a hearing on his claim that he

suffered from an intellectual disability that

would render his execution unconstitutional.

CRS-7

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Area of Law

Justice Ginsburg’s

Position in the Case

(If She Joined the Majority in Full,

Position Adopted by the Majority)

City of Los

Angeles v. Patel

Breyer,

GINSBURG,

Kagan, Kennedy,

Sotomayor*

Alito+, Roberts,

Scalia+, Thomas

576 U.S. 409

(2015)

Fourth

Amendment

Criminal Law

and Procedure

Municipal code provision requiring hotel

operators to provide guest information to

requesting police officers violated the Fourth

Amendment.

Kingsley v.

Hendrickson

Breyer*,

GINSBURG,

Kagan, Kennedy,

Sotomayor

Alito+, Roberts,

Scalia+, Thomas

576 U.S. 389

(2015)

Fourteenth

Amendment:

Due Process

Clause

Civil Rights

Law

To prevail on an excessive force claim, a pretrial

detainee need only show that the force used

was objectively unreasonable.

Obergefell v.

Hodges

Breyer,

GINSBURG,

Kagan, Kennedy*

Sotomayor

Alito+,

Roberts+,

Scalia+,

Thomas+

576 U.S. 644

(2015)

Fourteenth

Amendment:

Due Process

Clause;

Fourteenth

Amendment:

Equal Protection

Clause

Family Law;

Civil Rights

Law

A state, by failing to recognize marriages

between same-sex couples, violated the Equal

Protection and Due Process Clauses of the

Fourteenth Amendment.

Walker v. Texas

Div., Sons of

Confederate

Veterans, Inc.

Breyer*,

GINSBURG,

Kagan, Sotomayor,

Thomas

Alito+,

Kennedy,

Roberts, Scalia

576 U.S. 200

(2015)

First

Amendment:

Free Speech

Clause

Freedom of

Speech

Texas did not violate the First Amendment by

rejecting a proposed specialty license plate

design featuring a Confederate battle flag

because specialty license plates are government

speech.

Williams-Yulee v.

Fla. Bar

Breyer+,

GINSBURG+,

Kagan, Roberts*,

Sotomayor

Alito+,

Kennedy+,

Scalia+, Thomas

575 U.S. 433

(2015)

First

Amendment:

Free Speech

Clause

Freedom of

Speech;

Election Law

State law prohibiting candidates for state

judgeships from personally soliciting campaign

funds did not violate the First Amendment, and

states have substantial latitude to regulate

campaign finance in judicial elections.

CRS-8

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Hall v. Florida

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito+, Roberts,

Scalia, Thomas

572 U.S. 701

(2014)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Criminal Law

and Procedure

State’s capital punishment regime created an

unacceptable risk of unconstitutionally executing

persons with intellectual disabilities.

Alleyne v. United

States

Breyer+,

GINSBURG,

Kagan,

Sotomayor+,

Thomas*

Alito+,

Kennedy,

Roberts+, Scalia

570 U.S. 99

(2013)

Sixth

Amendment:

Right to Jury

Trial

Criminal Law

and Procedure

Any fact that increases the mandatory minimum

sentence is an element of the offense that must

be submitted to the jury.

Florida v. Jardines

GINSBURG,

Kagan+, Scalia*,

Sotomayor,

Thomas

Alito+, Breyer,

Kennedy,

Roberts

569 U.S. 1

(2013)

Fourth

Amendment

Criminal Law

and Procedure

The use of a drug-sniffing dog on a

homeowner’s porch to investigate the contents

of the home is a search under the Fourth

Amendment.

Hollingsworth v.

Perry

Alito, GINSBURG,

Kagan, Roberts*,

Scalia

Alito,

Kennedy+,

Sotomayor,

Thomas

570 U.S. 693

(2013)

Article III: Case

or Controversy

Requirement

Civil

Procedure

Proponents of a California law prohibiting samesex marriage lacked standing to appeal the

district court’s order invalidating the law.

Missouri v.

McNeely

GINSBURG,

Kagan, Kennedy+,

Scalia, Sotomayor*

Alito, Breyer,

Roberts+,

Thomas+

569 U.S. 141

(2013)

Fourth

Amendment

Criminal Law

and Procedure

Natural metabolization of alcohol in the

bloodstream does not create a categorical

exception to the search warrant requirement to

allow for warrantless, nonconsensual blood

testing in drunk driving cases.

Peugh v. United

States

Breyer,

GINSBURG,

Kagan, Kennedy,

Sotomayor*

Alito+, Roberts,

Scalia, Thomas+

569 U.S. 530

(2013)

Article I: Ex Post

Facto Clause

Criminal Law

and Procedure

Sentencing a criminal defendant under current

sentencing guidelines violates the Ex Post Facto

Clause if the applicable sentencing range would

be higher than the sentencing guidelines that

were in effect at the time of the offense.

CRS-9

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Trevino v. Thaler

Breyer*,

GINSBURG,

Kagan, Kennedy,

Sotomayor

Alito, Roberts+,

Scalia+, Thomas

569 U.S. 413

(2013)

Sixth

Amendment:

Right to Counsel

Habeas

Corpus

Under specified circumstances, federal habeas

courts can entertain certain ineffective

assistance of counsel claims even if they are

procedurally defective.

United States v.

Windsor

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito+,

Roberts+,

Scalia+, Thomas

570 U.S. 744

(2013)

Fifth

Amendment:

Due Process

Clause

Family Law;

Civil Rights

Law

Federal statute defining marriage to exclude

same-sex partnerships was unconstitutional.

Lafler v. Cooper

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito+, Roberts,

Scalia+, Thomas

566 U.S. 156

(2012)

Sixth

Amendment:

Right to Counsel

Criminal Law

and

Procedure;

Habeas

Corpus

Defense counsel prejudicially rendered

ineffective assistance by advising the criminal

defendant to reject plea offer.

Miller v. Alabama

Breyer+,

GINSBURG,

Kagan*, Kennedy,

Sotomayor+

Alito+,

Roberts+,

Scalia, Thomas+

567 U.S. 460

(2012)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Criminal Law

and Procedure

Sentences mandating life imprisonment without

the possibility of parole for juveniles violated

the Eighth Amendment.

Missouri v. Frye

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito, Roberts,

Scalia+, Thomas

566 U.S. 134

(2012)

Sixth

Amendment:

Right to Counsel

Habeas

Corpus

Criminal defense counsel must timely

communicate favorable plea offers to the

defendant.

National

Federation of

Independent

Businesses v.

Sebelius

Breyer,

GINSBURG+,

Kagan, Roberts*,

Sotomayor

Alito+,

Kennedy+,

Scalia+,

Thomas+

567 U.S. 519

(2012)

Taxing and

Spending Clause

Separation of

Powers

The Patient Protection and Affordable Care

Act’s individual mandate requiring most

Americans to purchase health insurance or else

pay a penalty is a valid exercise of Congress’s

taxing power and is also authorized under the

Commerce Clause.b

CRS-10

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Brown v. Plata

Breyer,

GINSBURG,

Kagan, Kennedy*,

Sotomayor

Alito+, Roberts,

Scalia+, Thomas

563 U.S. 493

(2011)

Eighth

Amendment:

Cruel and

Unusual

Punishments

Clause

Civil Rights

Law

Caps on the population of overcrowded state

prisons were necessary to remedy violations of

prisoners’ constitutional rights.

Bullcoming v. New

Mexico

GINSBURG*,

Kagan, Scalia,

Sotomayor+,

Thomas

Alito, Breyer,

Kennedy+,

Roberts

564 U.S. 647

(2011)

Sixth

Amendment:

Confrontation

Clause

Criminal Law

and Procedure

The Confrontation Clause does not allow

prosecutors to introduce a blood-alcohol test

without the testimony of the analyst who

performed the test.

JDB v. North

Carolina

Breyer,

GINSBURG,

Kagan, Kennedy,

Sotomayor*

Alito+, Roberts,

Scalia, Thomas

564 U.S. 261

(2011)

Fifth

Amendment:

SelfIncrimination

Clause

Criminal Law

and Procedure

A juvenile defendant’s age is generally relevant

to whether that juvenile is in custody for the

purposes of the Miranda doctrine.

Turner v. Rogers

Breyer*,

GINSBURG,

Kagan, Kennedy,

Sotomayor

Alito, Roberts,

Scalia, Thomas+

564 U.S. 431

(2011)

Fourteenth

Amendment:

Due Process

Clause

Family Law

The Due Process Clause does not automatically

require appointment of counsel to indigent

parties in civil contempt proceedings in child

support cases, but the failure to provide

alternate procedural safeguards in such cases

can violate due process.

Christian Legal

Soc’y v. Martinez

Breyer,

GINSBURG*,

Kennedy+,

Sotomayor,

Stevens+

Alito+, Roberts,

Scalia, Thomas

561 U.S. 661

(2010)

First

Amendment:

Free Speech

Clause; First

Amendment:

Free Exercise

Clause

Freedom of

Religion;

Freedom of

Association

School did not violate First Amendment by

refusing to recognize a student organization that

did not accept all students who wished to join

the organization, including those who did not

share the organization’s views about religion

and sexual orientation.

CRS-11

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Sears v. Upton

Per Curiam

(Breyer,

GINSBURG,

Kennedy,

Sotomayor,

Stevens)

Alito, Roberts,

Scalia+, Thomas

561 U.S. 945

(2010)

Sixth

Amendment:

Right to Counsel

Habeas

Corpus

State postconviction court failed to apply

proper legal standards when assessing whether

inadequacies in defense counsel’s mitigation

investigation prejudiced the petitioner.

Wellons v. Hall

Per Curiam

(Breyer,

GINSBURG,

Kennedy,

Sotomayor,

Stevens)

Alito+, Roberts,

Scalia+, Thomas

558 U.S. 220

(2010)

Fourteenth

Amendment:

Due Process

Clause

Habeas

Corpus;

Judicial System

Capital murder defendant was not barred from

pursuing claims of judge, juror, and bailiff

misconduct.

Arizona v. Gant

GINSBURG,

Scalia+, Souter,

Stevens+, Thomas

Alito+,

Breyer+,

Kennedy,

Roberts

556 U.S. 332

(2009)

Fourth

Amendment

Criminal Law

and Procedure

The search-incident-to-arrest exception to the

Fourth Amendment’s warrant requirement does

not permit police to search a defendant’s car if

the defendant poses no threat to the officer’s

safety or to the preservation of evidence.

Caperton v. A.T.

Massey Coal Co.

Breyer,

GINSBURG,

Kennedy*, Souter,

Stevens

Alito, Roberts+,

Scalia+, Thomas

556 U.S. 868

(2009)

Fourteenth

Amendment:

Due Process

Clause

Judicial System

Due Process Clause requires recusal when a

judge’s failure to do so would create a

constitutionally intolerable probability of bias.

Haywood v.

Drown

Breyer,

GINSBURG,

Kennedy, Souter,

Stevens*

Alito, Roberts,

Scalia, Thomas+

556 U.S. 729

(2009)

Article VI:

Supremacy

Clause

Civil Rights

Law; Judicial

System

State law that divested state courts of general

jurisdiction over suits filed under 42 U.S.C. §

1983 for monetary damages against state

corrections officers violated the Supremacy

Clause.

Melendez-Diaz v.

Massachusetts

GINSBURG,

Scalia*, Souter,

Stevens, Thomas+

Alito, Breyer,

Kennedy+,

Roberts

557 U.S. 305

(2009)

Sixth

Amendment:

Confrontation

Clause

Criminal Law

and Procedure

An affidavit of a forensic analyst admitted against

a defendant is testimonial evidence and thus

subject to the requirements of the Sixth

Amendment’s Confrontation Clause

CRS-12

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Oregon v. Ice

Alito, Breyer,

GINSBURG*,

Kennedy, Stevens

Boumediene v.

Bush

Justice Ginsburg’s

Position in the Case

Case

Citation with

Year

Constitutional

Provision

Interpreted

Roberts,

Scalia+, Souter,

Thomas

555 U.S. 160

(2009)

Sixth

Amendment:

Right to Jury

Trial

Criminal Law

and Procedure

Sixth Amendment did not prohibit states from

allowing judges (rather than juries) to find facts

necessary to support imposing consecutive

criminal sentences.

Breyer,

GINSBURG,

Kennedy*,

Souter+, Stevens

Alito, Roberts+,

Scalia+, Thomas

553 U.S. 723

(2008)

Article I:

Suspension

Clause

National

Security;

Habeas

Corpus

Enemy belligerents detained at Guantanamo Bay

were entitled to seek habeas review of the

legality of their detention.

Kennedy v.

Louisiana

Breyer,

GINSBURG,

Kennedy*, Souter,

Stevens

Alito+, Roberts,

Scalia, Thomas

554 U.S. 407

(2008)

Eighth

Amendment:

Cruel and Usual

Punishment

Clause

Criminal Law

and Procedure

The Eighth Amendment forbids imposing the

death penalty for the rape of a child in a case

where the victim did not die and the defendant

did not intend the victim’s death.

Sprint Commc’ns

Co. v. APCC

Servs., Inc.

Breyer*,

GINSBURG,

Kennedy, Souter,

Stevens

Alito, Roberts+,

Scalia, Thomas

554 U.S. 269

(2008)

Article III

Judicial System;

Communicatio

ns Law

Assignees of payphone operators had standing

to sue long-distance carriers.

Abdul-Kabir v.

Quarterman

Breyer,

GINSBURG,

Kennedy, Souter,

Stevens*

Alito, Roberts+,

Scalia+, Thomas

550 U.S. 233

(2007)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Habeas

Corpus

State court improperly rejected capital

defendant’s claim that the sentencing jury was

unable to consider mitigating evidence

concerning the defendant’s family background

and mental defects.

Massachusetts v.

EPA

Breyer,

GINSBURG,

Kennedy, Souter,

Stevens*

Alito, Roberts+,

Scalia+, Thomas

549 U.S. 497

(2007)

Article III

Judicial System;

Environmental

Law

State had standing to challenge the

Environmental Protection Agency’s (EPA’s)

alleged failure to regulate greenhouse gases

adequately; greenhouse gases fit within the

Clean Air Act’s definition of “air pollutant” and

therefore fell within EPA’s regulatory authority.

Case Name

CRS-13

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Panetti v.

Quarterman

Breyer,

GINSBURG,

Kennedy*, Souter,

Stevens

Alito, Roberts,

Scalia, Thomas+

551 U.S. 930

(2007)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Habeas

Corpus

State failed to afford petitioner a constitutionally

adequate procedure to prove he lacked the

mental competency required to be subject to

capital punishment.

Brewer v.

Quarterman

Breyer,

GINSBURG,

Kennedy, Souter,

Stevens*

Alito, Roberts+,

Scalia+, Thomas

550 U.S. 286

(2007)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Habeas

Corpus

Jury instructions in a capital murder case did not

provide the sentencing jury an adequate

opportunity to consider mitigating evidence.

Smith v. Texas

Breyer,

GINSBURG,

Kennedy*,

Souter+, Stevens

Alito+, Roberts,

Scalia, Thomas

550 U.S. 297

(2007)

Eighth

Amendment:

Cruel and

Unusual

Punishment

Clause

Habeas

Corpus

Erroneous jury instructions in capital murder

case entitled the petitioner to habeas corpus

relief.

Central Va.

Community

College v. Katz

Breyer,

GINSBURG,

O’Connor, Souter,

Stevens*

Kennedy,

Roberts, Scalia,

Thomas+

546 U.S. 356

(2006)

Article I, Section

8

Bankruptcy

Law

A bankruptcy trustee’s proceeding to set aside

the debtor’s preferential transfers to state

agencies is not barred by the doctrine of

sovereign immunity.

Georgia v.

Randolph

Breyer+,

GINSBURG,

Kennedy, Souter*,

Stevens+

Roberts+,

Scalia+, Thomas

547 U.S. 103

(2006)

Fourth

Amendment

Criminal Law

and Procedure

A physically present inhabitant’s express refusal

of consent to a police search of his home

overrides the consent of a fellow occupant,

necessitating a warrant for such a search.

CRS-14

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Constitutional

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Jones v. Flowers

Breyer,

GINSBURG,

Roberts*, Souter,

Stevens

Kennedy, Scalia,

Thomas+

547 U.S. 220

(2006)

Fourth

Amendment:

Due Process

Clause

Takings Law

When notice of a tax sale of a home for unpaid

taxes is mailed to the homeowner and returned

undelivered, the government must take

additional reasonable steps to provide notice

before selling the property.

United States v.

Gonzalez-Lopez

Breyer,

GINSBURG,

Scalia*, Souter,

Stevens

Alito+,

Kennedy,

Roberts,

Thomas

548 U.S. 140

(2006)

Sixth

Amendment:

Right to Counsel

Criminal Law

and Procedure

A trial court’s erroneous deprivation of a

criminal defendant’s choice of counsel entitles

the defendant to a reversal of his conviction.

Source: Created by CRS.

Notes: Author of primary opinion designated with asterisk (*). Authors of concurring and dissenting opinions identified with plus signs (+).

a.

In the 62 cases listed in Table 1, the three most common voting groups of Justices in the majority or controlling plurality were (1) Breyer, GINSBURG, Kagan,

Kennedy, and Sotomayor (21 cases); (2) Breyer, GINSBURG, Kennedy, Souter, and Stevens (11 cases); and (3) Breyer, GINSBURG, Kagan, Roberts, and Sotomayor

(4 cases).

b.

The separate elements of the Court’s holding in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), were each joined by a distinct group

of Justices. Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito agreed that the individual mandate was not au thorized under the Commerce

Clause.

Justices Scalia, Kennedy, Thomas, and Alito did not join in Chief Justice Rob erts’s opinion, however, but arrived at the same conclusion in a dissenting opinion. 567

U.S. at 646 (Scalia, J., joined by Kennedy, Thomas, and Alito JJ.). Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, agreed that the

individual mandate was a valid exercise of Congress’s taxing power. Id. at 574. Justice Ginsburg wrote a separate partial concurrence, in which she also would have

upheld the Affordable Care Act’s individual mandate under both the taxing power and the Commerce Clause, and the Medicaid expansion provision under the

Spending Clause. Id. at 589 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). Justice Sotomayor joined in the entirety of Justice Ginsburg’s opinion, and

Justices Breyer and Kagan joined in the opinion as to the individual mandate but not to the Medicaid expansion provision.

CRS-15

Table 2. Justice Ruth Bader Ginsburg As a Deciding Vote: Statutory Law Decisions

October 2005 Term-October 2019 Term

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Statutory

Provision

Interpreted

Dep’t of

Homeland

Security v.

Regents of the

University of

California

Breyer,

GINSBURG, Kagan,

Roberts*,

Sotomayor+

Alito+,

Gorsuch,

Kavanaugh+,

Thomas+

591 U.S. ____

(2020); 140 S.

Ct. 1891

(2020)

Administrative

Procedure Act

Administrative

Law;

Immigration

Law

Department of Homeland Security provided an

inadequate explanation for the rescission of the

Deferred Action for Childhood Arrival

program, rendering that rescission arbitrary and

capricious.

McGirt v.

Oklahoma

Breyer,

GINSBURG,

Gorsuch*, Kagan,

Sotomayor

Alito,

Kavanaugh,

Roberts+,

Thomas+

591 U.S. ____

(2020); 140 S.

Ct. 2452

(2020)

Major Crimes

Act

Criminal Law

and

Procedure;

Indian Law

Land reserved for the Muscogee (Creek)

Nation in the 19th century remained “Indian

country” for criminal jurisdiction purposes

under the Major Crimes Act, thereby generally

limiting Oklahoma’s authority to prosecute

Indians for crimes committed on that land.

Dep’t of

Commerce v.

New York

Breyer+,

GINSBURG, Kagan,

Roberts*,

Sotomayor

Alito+,

Gorsuch,

Kavanaugh,

Thomas+

588 U.S. ____

(2020); 139 S.

Ct. 2551

(2019)

Administrative

Procedure Act

Administrative

Law

The Commerce Secretary provided a

pretextual explanation for including a citizenship

question on the census, warranting remand to

the agency.

Kisor v. Wilkie

Breyer,

GINSBURG,

Kagan*, Roberts+,

Sotomayor

Alito,

Gorsuch+,

Kavanaugh,

Thomas

588 U.S. ____

(2020); 139 S.

Ct. 2400

(2019)

Administrative

Procedure Act

Administrative

Law

The judicial doctrine set forth in Auer v. Robbins,

519 U.S. 452 (1997) and Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410 (1945), under which

courts defer to agency interpretations of their

own ambiguous regulations, remains controlling

law.

Apple Inc. v.

Pepper, et al.

Breyer,

GINSBURG, Kagan,

Kavanaugh*,

Sotomayor

Alito,

Gorsuch+,

Roberts,

Thomas

587 U.S. ____

(2019); 139 S.

Ct. 1514

(2019)

Clayton Antitrust

Act

Business Law

iPhone owners who purchased apps from

Apple’s app store were “direct purchasers” and

could thus sue Apple for alleged monopolization

of apps.

Case Name

CRS-16

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Justice Ginsburg’s

Case

Citation with

Year

Statutory

Provision

Interpreted

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Home Depot

U.S.A., Inc. v.

Jackson

Breyer,

GINSBURG, Kagan,

Sotomayor,

Thomas*

Alito+,

Gorsuch,

Kavanaugh,

Roberts

587 U.S. ____

(2019); 139 S.

Ct. 1743

(2019)

General Removal

Provision (28

U.S.C. § 1441);

Class Action

Fairness Act

Judicial System

Neither the Class Action Fairness Act nor the

general statute permitting the removal of state

civil actions to federal court permit a thirdparty counterclaim defendant to remove the

counterclaim filed against it to federal court.

Mont v. United

States

Alito, GINSBURG,

Kavanaugh,

Roberts, Thomas*

Breyer,

Gorsuch,

Kagan,

Sotomayor+

587 U.S. ____

(2019); 139 S.

Ct. 1826

(2019)

18 U.S.C.

§ 3624(e)

Criminal Law

and Procedure

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.

Artis v. District of

Columbia

Breyer,

GINSBURG*,

Kagan, Roberts,

Sotomayor

Alito,

Gorsuch+,

Kennedy,

Thomas

583 U.S. ____

(2018); 138 S.

Ct. 594 (2018)

28 U.S.C. § 1367

Judicial System

If a federal district court exercising

supplemental jurisdiction over state claims

dismissed those claims, Section 1367(d)’s

instruction to “toll” a state limitations period

for 30 days stopped the clock on the statute of

limitations for refiling those claims in state

court.

Chavez-Meza v.

United States

Alito, Breyer*,

GINSBURG,

Roberts, Thomas

Kagan,

Kennedy+,

Sotomayor

585 U.S. ____

(2018); 138 S.

Ct. 1959

(2018)

Sentencing

Reform Act of

1984

Criminal Law

and Procedure

District court’s explanation for reducing

defendant’s sentence that was not as low as the

defendant requested was adequate.

Ocasio v. United

States

Alito*, Breyer+,

GINSBURG, Kagan,

Kennedy

Roberts,

Sotomayor+,

Thomas+

578 U.S. ____

(2016); 136 S.

Ct. 1423

(2016)

Hobbs Act

Criminal Law

and Procedure

Defendant could be convicted of conspiracy to

violate the Hobbs Act upon proof that he

reached an agreement to obtain property under

color of official right.

Torres v. Lynch

Alito, GINSBURG,

Kagan*, Kennedy,

Roberts

Breyer,

Sotomayor+,

Thomas

578 U.S. ____

(2016); 136 S.

Ct. 1619

(2016)

Immigration and

Nationality Act

Immigration

Law

Alien’s conviction for state crime constituted an

aggravated felony rendering alien ineligible for

cancellation of removal; state crime had all the

requisite elements of the listed federal offense

except for a connection to interstate

commerce.

CRS-17

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Statutory

Provision

Interpreted

Justice Ginsburg’s

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Texas Dep’t of

Hous. & Cmty.

Affairs v. Inclusive

Cmtys. Project,

Inc.

Breyer,

GINSBURG, Kagan,

Kennedy*,

Sotomayor

Alito+, Roberts,

Scalia, Thomas+

576 U.S. 519

(2015)

Fair Housing Act

Civil Rights

Law

Disparate impact claims were cognizable under

the Fair Housing Act.

United States v.

Kwai Fun Wong

Breyer,

GINSBURG,

Kagan*, Kennedy,

Sotomayor

Alito+, Roberts,

Scalia, Thomas

575 U.S. 402

(2015)

Federal Tort

Claims Act

Civil Liability;

Judicial System

The Federal Tort Claims Act’s time limitations

were nonjurisdictional and could accordingly be

extended pursuant to equitable tolling

principles.

Yates v. United

States

Alito+, Breyer,

GINSBURG*,

Roberts,

Sotomayor

Kagan+,

Kennedy, Scalia,

Thomas

574 U.S. 528

(2015)

Sarbanes-Oxley

Act

Business Law;

Criminal Law

and Procedure

Commercial fisherman who disposed of

undersized fish to prevent law enforcement

detection could not be charged under SarbanesOxley Act for destruction of “tangible objects”

to impede a governmental investigation.

Dart Cherokee

Basin Operating

Company LLC v.

Owens

Alito, Breyer,

GINSBURG*,

Roberts,

Sotomayor

Kagan,

Kennedy,

Scalia+,

Thomas+

574 U.S. 81

(2014)

28 U. S. C.

§ 1446(a)

Judicial System

A defendant’s notice of removal need include

only a plausible allegation that the amount in

controversy exceeds the jurisdictional

threshold and need not contain evidentiary

submissions.

Abramski v.

United States

Breyer,

GINSBURG,

Kagan*, Kennedy,

Sotomayor

Alito, Roberts,

Scalia+, Thomas

573 U.S. 169

(2014)

Gun Control Act

Criminal Law

and Procedure

Straw firearms purchasers who presented

themselves as the actual buyers of those

firearms, despite purchasing them on another’s

behalf, made false statements in violation of the

Gun Control Act.

Paroline v. United

States

Alito, Breyer,

GINSBURG, Kagan,

Kennedy*

Roberts+,

Scalia,

Sotomayor+,

Thomas

572 U.S. 434

(2014)

Mandatory

Victims

Restitution Act

Criminal Law

and Procedure

Restitution for child pornography possession

should be awarded in amount comporting with

the defendant’s relative role in the causal

process underlying the victim’s losses.

CRS-18

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Scialabba v.

Cuellar de Osorio

GINSBURG,

Kagan*, Kennedy,

Roberts+, Scalia

Alito+, Breyer,

Sotomayor+,

Thomas

573 U.S. 41

(2014)

FTC v. Actavis,

Inc.

Breyer*,

GINSBURG, Kagan,

Kennedy,

Sotomayor

Roberts+,

Scalia, Thomas

McQuiggin v.

Perkins

Breyer,

GINSBURG*,

Kagan, Kennedy,

Sotomayor

US Airways, Inc. v.

McCutchen

Justice Ginsburg’s

Case

Citation with

Year

Statutory

Provision

Interpreted

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Child Status

Protection Act

Administrative

Law;

Immigration

Law

Interpretation given to the Child Status

Protection Act by the Board of Immigration

Appeals was reasonable and entitled to

deference.

570 U.S. 136

(2013)

Hatch-Waxman

Act; Federal

Trade

Commission Act

Business Law

Reverse payment settlements in patent

infringement litigation could violate antitrust

laws under certain circumstances.

Alito, Roberts,

Scalia+, Thomas

569 U.S. 383

(2013)

Antiterrorism

and Effective

Death Penalty

Act

Habeas

Corpus

Petitioner’s plea of actual innocence could

potentially overcome statute of limitations in

habeas corpus statute; timing of the filing of a

petition is relevant to assessment of petitioner’s

proof of innocence.

Breyer,

GINSBURG,

Kagan*, Kennedy,

Sotomayor

Alito, Roberts,

Scalia+, Thomas

569 U.S. 88

(2013)

Employment

Retirement

Income Security

Act

Labor and

Employment

Law; Business

Law

Equitable principles could not override the plain

terms of a plan established under the Employee

Retirement Income Security Act (ERISA), but

equitable principles could influence the

interpretation of an ERISA plan whose terms

were not plain.

Arizona v. United

States

Breyer,

GINSBURG,

Kennedy*, Roberts,

Sotomayor

Alito+, Scalia+,

Thomas+

567 U.S. 387

(2012)

Immigration and

Nationality Act

Immigration

Law

Federal law preempted several provisions of a

state statute relating to aliens present in the

United States without authorization.

Dorsey v. United

States

Breyer*,

GINSBURG, Kagan,

Kennedy,

Sotomayor

Alito, Roberts,

Scalia+, Thomas

567 U.S. 260

(2012)

Fair Sentencing

Act

Criminal Law

and Procedure

Fair Sentencing Act’s new, lower mandatory

minimums apply to those sentenced after the

enactment of the law for offenses committed

prior to the law’s enactment.

Case Name

CRS-19

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Justice Ginsburg’s

Statutory

Provision

Interpreted

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

CSX

Transportation v.

McBride

Breyer,

GINSBURG*,

Kagan, Sotomayor,

Thomas

Alito, Kennedy,

Roberts+, Scalia

564 U.S. 685

(2011)

Federal

Employers’

Liability Act

Civil Liability;

Labor and

Employment

Law

To prove liability under the Federal Employers’

Liability Act, a railroad worker does not need

to satisfy the common-law proximate cause

standard, but only show that the railroad’s

negligence played a part in plaintiff employee’s

injury.

Freeman v.

United States

Breyer,

GINSBURG, Kagan,

Kennedy*,

Sotomayor

Alito, Roberts+,

Scalia, Thomas

564 U.S. 522

(2011)

Federal Rule of

Criminal

Procedure

11(c)(1)(C);

Sentencing

Reform Act

Criminal Law

and Procedure

Defendants who enter into plea agreements

that recommend a particular sentence as a

condition of the guilty plea may be eligible for a

sentence reduction under 18 U.S.C. §

3582(c)(2) if the applicable sentencing guidelines

range has been lowered by retroactive

amendment.

Dolan v. United

States

Alito, Breyer*,

GINSBURG,

Sotomayor,

Thomas

Kennedy,

Roberts*, Scalia,

Stevens

560 U.S. 605

(2010)

Mandatory

Victims

Restitution Act

Criminal Law

and Procedure

A sentencing court that missed the Mandatory

Victims Restitution Act’s 90-day deadline for

determining the amount of restitution

nonetheless retained the power to order

restitution, where the court had previously

made clear that it would order restitution and

left open only the amount of restitution.

Hemi Group v.

City of New York

Alito,

GINSBURG+,

Roberts*, Scalia,

Thomas

Breyer+,

Kennedy,

Stevens

559 U.S. 1

(2010)

Racketeer

Influenced and

Corrupt

Organizations

Act (RICO)

Civil Liability;

Food and Drug

Law

New York City could not use Racketeer

Influenced and Corrupt Organizations Act to

collect tobacco taxes that it could not

permissibly collect on out-of-state sellers due

to the Commerce Clause.

CRS-20

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Justice Ginsburg’s

Case

Citation with

Year

Statutory

Provision

Interpreted

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Atlantic Sounding

Co, Inc. v.

Townsend

Breyer,

GINSBURG,

Thomas*, Souter,

Stevens

Alito+,

Kennedy,

Roberts, Scalia

557 U.S. 404

(2009)

Jones Act

Maritime Law

An injured seaman may recover punitive

damages for the willful and wanton disregard of

the maintenance and cure obligation in general

maritime law.

Corley v. United

States

Breyer,

GINSBURG

Kennedy, Souter*,

Stevens

Alito+, Roberts,

Scalia, Thomas

556 U.S. 303

(2009)

Omnibus Crime

Control and Safe

Streets Act

Criminal Law

and Procedure

Statute governing admissibility of confessions in

criminal proceedings limited, but did not

eliminate, the applicability of the evidentiary

exclusionary rule.

Cuomo v.

Clearing House

Assn., LLC

Breyer,

GINSBURG,

Souter, Stevens,

Scalia*

Alito, Kennedy,

Roberts,

Thomas+

557 U.S. 519

(2009)

National Bank

Act

Business Law

The National Bank Act and an implementing

regulation of the Office of the Comptroller of

the Currency did not preclude ordinary

enforcement of state law against a national

bank.

United States v.

Denedo

Breyer,

GINSBURG,

Kennedy*, Souter,

Stevens

Alito, Roberts+,

Scalia, Thomas

556 U.S. 904

(2009)

Military Justice

Act; Uniform

Code of Military

Justice

Military Law;

Criminal Law

and Procedure

Military appellate court had jurisdiction to

entertain a challenge to a prior criminal

conviction resulting from a guilty plea allegedly

caused by ineffective assistance of counsel.

Vaden v. Discover

Bank

GINSBURG*,

Kennedy, Scalia,

Souter, Thomas

Alito, Breyer,

Roberts+,

Stevens

556 U.S. 49

(2009)

Federal

Arbitration Act

Judicial System

District court lacked subject matter jurisdiction

to entertain a petition to compel arbitration

because the case did not arise under the laws of

the United States.

Spears v. United

States

Per Curiam

(Breyer,

GINSBURG, Scalia,

Souter, Stevens)

Alito,

Kennedy+,

Roberts+,

Thomas+

555 U.S. 261

(2009)

United States

Sentencing

Guidelines

Criminal Law

and Procedure

District court had discretion to reject

categorically the advisory federal sentencing

guidelines ratio used for sentencing crack

cocaine and powder cocaine convictions.

CRS-21

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Ali v. Federal

Bureau of Prisons

Alito, GINSBURG,

Roberts, Scalia,

Thomas*

Breyer+,

Kennedy+,

Souter, Stevens

552 U.S. 214

(2008)

Federal Tort

Claims Act

Civil Liability

Bureau of Prisons employees are law

enforcement officers under the Federal Tort

Claims Act; the government’s sovereign

immunity was not waived in a suit to recover

damages for loss of a prisoner’s personal

property.

Altria Grp., Inc. v.

Good

Breyer,

GINSBURG,

Kennedy, Souter,

Stevens*

Alito, Roberts,

Scalia, Thomas+

555 U.S. 70

(2008)

Federal Cigarette

Labeling and

Advertising Act

Civil Liability;

Business Law

Federal law did not preempt a state law unfair

trade practices claim against tobacco

manufacturer.

Dada v. Mukasey

Breyer,

GINSBURG,

Kennedy*, Souter,

Stevens

Alito+, Roberts,

Scalia+, Thomas

554 U.S. 1

(2008)

Immigration and

Nationality Act

Immigration

Law

Alien had to be granted the opportunity to

timely withdraw motion for a voluntary

departure.

United States v.

Santos

GINSBURG,

Scalia*, Souter,

Stevens+, Thomas

Alito+, Breyer,

Kennedy,

Roberts

553 U.S. 507

(2008)

Money

Laundering

Control Act

Business Law;

Criminal Law

and Procedure

The term “proceeds” in the federal money

laundering statute was ambiguous and,

therefore, the rule of lenity applied; in present

case involving stand-alone gambling operation,

the term should mean “profits” instead of

“receipts.”

Marrama v.

Citizens Bank of

Mass.

Breyer,

GINSBURG,

Kennedy, Souter,

Stevens*

Alito+, Roberts,

Scalia, Thomas

549 U.S. 365

(2007)

Bankruptcy Code

Business Law

Debtor could not use specialized provisions of

the Bankruptcy Code governing consumer

debtors.

Case Name

CRS-22

Justice Ginsburg’s

Case

Citation with

Year

Statutory

Provision

Interpreted

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Watters v.

Wachovia Bank,

N.A.

Alito, Breyer,

GINSBURG*,

Kennedy, Souter

Roberts, Scalia,

Stevens+

550 U.S. 1

(2007)

National Bank

Act

Business Law

Bank’s mortgage business was subject to the

superintendence of the Office of the

Comptroller of the Currency, rather than that

of the states.

Zuni Pub. Sch.

Dist. No. 89 v.

Dep’t of Educ.

Alito, Breyer*,

GINSBURG,

Kennedy+,

Stevens+

Roberts,

Scalia+,

Souter+,

Thomas

550 U.S. 81

(2007)

Federal Impact

Aid Act

Education Law;

Administrative

Law

Secretary of Education could consider school

district population when assessing whether a

state had implemented a qualifying program that

equalized expenditures for free public education

among the state’s local educational agencies.

Empire

HealthChoice

Assurance, Inc. v.

McVeigh

GINSBURG*,

Roberts, Scalia,

Stevens, Thomas

Alito, Breyer+,

Kennedy,

Souter

547 U.S. 677

(2006)

Federal

Employees

Health Benefits

Act

Judicial System

The Federal Employees Health Benefits Act

does not provide for federal-court jurisdiction

over a suit by a health insurance carrier seeking

reimbursement for benefits after an enrollee

recovered damages for injury in a state court

action.

Hamdan v.

Rumsfeld

Breyer+,

GINSBURG,

Kennedy+, Souter,

Stevens*

Alito+, Scalia+,

Thomas+

548 U.S. 557

(2006)

Uniform Code of

Military Justice;

Detainee

Treatment Act

National

Security

President’s order violated statutes governing

the President’s authority to convene military

courts.

House v. Bell

Breyer,

GINSBURG,

Kennedy*, Souter,

Stevens

Roberts+,

Scalia, Thomas

547 U.S. 518

(2006)

Antiterrorism

and Effective

Death Penalty

Act

Habeas

Corpus

Procedural default of a petitioner on death row

who made a showing of actual innocence could

be excused, and the habeas corpus petition

could proceed.

League of United

Latin Am.

Citizens v. Perry b

Breyer,

GINSBURG,

Kennedy*, Souter+,

Stevens

Alito, Roberts,

Scalia, Thomas

548 U.S. 399

(2006)

Voting Rights Act

Election Law

The redrawing of one of Texas’s legislative

districts violated the Voting Rights Act.

CRS-23

Justices

Dissenting,

Including

Partial

Dissents

Justice Ginsburg’s

Case

Citation with

Year

Statutory

Provision

Interpreted

Position in the Case

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Case Name

Day v.

McDonough

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Alito, GINSBURG*,

Kennedy, Roberts,

Souter

Breyer, Scalia+,

Stevens+,

Thomas

Justice Ginsburg’s

Case

Citation with

Year

547 U.S. 198

(2006)

Statutory

Provision

Interpreted

Antiterrorism

and Effective

Death Penalty

Act

Position in the Case

Area of Law

Habeas

Corpus

(If She Joined the Majority in Full,

Position Adopted by the Majority)

District court did not reversibly err by

dismissing an untimely habeas corpus petition

that state had erroneously treated as timely.

Source: Created by CRS.

Notes: Author of primary opinion designated with asterisk (*). Authors of concurring and dissenting opinions identified with plus signs (+).

a.

In the 45 cases listed in Table 2, the three most common voting groups of Justices in the majority or controlling plurality were (1) Breyer, GINSBURG, Kagan,

Kennedy, and Sotomayor (8 cases); (2) Breyer, GINSBURG, Kennedy, Souter, and Stevens (7 cases); and (3) Breyer, GINSBURG, Kagan, Roberts, and Sotomayor (4

cases).

b.

The Supreme Court fractured markedly in League of United American Latin American Citizens v. Perry, resulting in six different opinions that reached a variety of

different legal conclusions. This chart therefore reflects only the legal positions adopted in a majority opinion joined by J ustice Ginsburg. In addition to that opinion,

Justice Ginsburg also was part of a three-Justice plurality that concluded that appellants did not establish that a state legislature’s decision to override a valid, c ourtdrawn restricting plan used political classifications in a way that caused unconstitutional political gerrymanders. 548 U.S. 399, 439 (Kennedy, J., joined by Souter and

Ginsburg, JJ.). See also id. at 492-93 (Roberts, C.J., joined by Alito, J., concurring in judgment regarding statewide challenge).

CRS-24

Table 3. Justice Ruth Bader Ginsburg As a Deciding Vote: Miscellaneous Legal Decisions

October 2005 Term-October 2019 Term

Case Name

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Justice Ginsburg’s

Position in the Case

Law

Interpreted

Area of Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Herrera v.

Wyoming

Breyer,

GINSBURG,

Gorsuch, Kagan,

Sotomayor*

Alito+,

Kavanaugh,

Roberts,

Thomas

587 U.S. ____

(2019); 139 S.

Ct. 1686

(2019)

1968 Treaty

Between the

United States of

America and the

Crow Tribe of

Indians

Indian Law

The Crow Tribe’s right to hunt on “unoccupied

lands of the United States” under a 1968 treaty

did not expire when Wyoming became a state;

lands of Bighorn National Forest did not

become categorically “unoccupied” when the

forest was set aside as a national reserve.

Washington State

Dep’t of Licensing

v. Cougar Den,

Inc.

Breyer*,

GINSBURG,

Gorsuch+, Kagan,

Sotomayor

Alito,

Kavanaugh,

Roberts+,

Thomas

586 U.S. ____

(2019); 139 S.

Ct. 1000

(2019)

1855 Treaty

between the

United States

and the Yakama

Nation

Indian Law;

Tax Law

Treaty barred the State of Washington from

imposing a tax on fuel importers traveling by

public highway who were members of the

Yakama Nation.

Florida v. Georgia

Breyer*,

GINSBURG,

Kennedy, Roberts,

Sotomayor

Alito, Kagan,

Gorsuch,

Thomas+

585 U.S. ___

(2018); 138 S.

Ct. 2502

(2018)

Equitable

Apportionment

Environmental

Law

Further factual findings were necessary in a

water apportionment dispute between two

states.

Douglas v. Indep.

Living Ctr. of S.

Cal., Inc.

Breyer*,

GINSBURG, Kagan,

Kennedy,

Sotomayor

Alito,

Roberts+,

Scalia, Thomas

565 U.S. 606

(2012)

Title XIX of the

Social Security

Act (Medicaid)

Public Benefits

In light of intervening action by the Centers for

Medicare & Medicaid Services, changed

circumstances in case warranted remand for

determination of whether challenges to state

Medicaid statutes could proceed.

CRS-25

Case Name

New Jersey v.

Delaware

Justices in the

Majority or

Plurality,

Including Those

Concurring in

Judgmenta

GINSBURG*,

Kennedy, Roberts,

Souter, Thomas

Justices

Dissenting,

Including

Partial

Dissents

Case

Citation with

Year

Alito, Scalia+,

Stevens+

552 U.S. 597

(2008)

Justice Ginsburg’s

Position in the Case

Law

Interpreted

Interstate

Compact

Between New

Jersey and

Delaware

Area of Law

Environmental

Law

(If She Joined the Majority in Full,

Position Adopted by the Majority)

Provision of a compact between two states did

not grant one of those states exclusive

jurisdiction over certain riparian improvements.

Source: Created by CRS.

Notes: Author of primary opinion designated with asterisk (*). Authors of concurring and dissenting opinions identified with plus signs (+).

a.

CRS-26

In the five cases listed in Table 3, the only repeat voting group in the majority or controlling plurality was Breyer, GINSBURG, Gorsuch, Kagan, and Sotomayor (2

cases).

Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data

Author Information

Michael John Garcia

Section Research Manager

Kate R. Bowers

Legislative Attorney

Acknowledgments

Former CRS intern Adam Spiegel provided invaluable assistance in the research and preparation of this

report.

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

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R46546 · VERSION 1 · NEW

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