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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR46546

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 25, 2020
- **Citation:** R46546

## Text

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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Congressional Research Service

R46546 · VERSION 1 · NEW

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46546. Public record. Not legal advice.