Justice Ruth Bader Ginsburg as a Deciding Vote September 25, 2020
on the Supreme Court: Select Data
Michael John Garcia
On September 18, 2020, Justice Ruth Bader Ginsburg, the second woman to serve on the
Section Research Manager
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
Kate R. Bowers
Court, Justice Ginsburg encountered nearly every major flashpoint of modern American legal
Legislative Attorney
debate, including many issues on which the sitting Justices were closely divided.
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
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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: Miscel aneous 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
O 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
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 wil be of interest to Members of Congress as the Senate
considers a nominee to fil her seat, as those cases may il ustrate 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 SUPREME 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, POLITICO (Sept. 18, 2020), https://www.politico.com/news/2020/09/18/justice-ruth-
bader-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-justice-
ruth-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, EMPIRICAL 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
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was stil 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 wel 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 fal 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
alphabetical y 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, intel ectual 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 Supreme Court Might
Have Three Swing Justices Now, FIVET HIRTYEIGHT (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 SCOTUSBlog’s “Stat Pack” compendia of 5-4 cases from October Term 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 Laboratories, 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
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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 general y,
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
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Including Those
Including
Case
Constitutional
Position in the Case
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
June Medical
Breyer*,
Alito+,
591 U.S. ____
Fourteenth
Abortion Law
Admitting privileges requirement imposed an
Services, LLC v.
GINSBURG,
Gorsuch+,
(2020); 140 S.
Amendment:
unconstitutional undue burden on a woman’s
Russo
Kagan, Roberts+,
Kavanaugh+,
Ct. 2103
Due Process
choice to have an abortion.
Sotomayor
Thomas+
(2020)
Clause
Gundy v. United
Alito+, Breyer,
Gorsuch+,
588 U.S. ____
Article I:
Separation of
The Sex Offender Registration and Notification
States
GINSBURG,
Roberts,
(2019); 139 S.
Nondelegation
Powers
Act’s delegation of authority to the Attorney
Kagan*, Sotomayor
Thomas
Ct. 2116
Doctrine
General to determine the applicability of
(2019)
registration requirements to offenders
convicted before the statute’s enactment does
not violate the nondelegation doctrine.
Madison v.
Breyer, Kagan*,
Alito+,
586 U.S. ____
Eighth
Habeas
The Eighth Amendment may permit executing a
Alabama
GINSBURG,
Gorsuch,
(2019); 139 S.
Amendment:
Corpus
prisoner who has no memory of committing his
Roberts,
Thomas
Ct. 718
Cruel and
crime, but may prohibit execution of a prisoner
Sotomayor
Unusual
who suffers from dementia or another disorder
Punishment
as opposed to psychotic delusions; the case was
Clause
remanded to consider the defendant’s
competency.
United States v.
Breyer,
Alito,
588 U.S. ____
Gun Control Act Criminal Law
Residual clause in the “crime of violence”
Davis
GINSBURG,
Kavanaugh+,
(2019); 139 S.
and Procedure
definition in 18 U.S.C. § 924(c)(3)(B), which
Gorsuch*, Kagan,
Roberts,
Ct. 2319
covers an offense “that, by its nature, involves a
Sotomayor
Thomas
(2019)
substantial risk that physical force against the
person or property of another may be used in
the course of committing the offense,” is
unconstitutional y vague.
CRS-4
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
United States v.
Breyer+,
Alito+,
588 U.S. ____
Fifth
Criminal Law
18 U.S.C. § 3583(k)’s provision requiring
Haymond
GINSBURG,
Kavanaugh,
(2019); 139 S.
Amendment;
and Procedure
revocation of supervised release and authorizing
Gorsuch*, Kagan,
Roberts,
Ct. 2369
Sixth
new mandatory minimum sentences for specific
Sotomayor
Thomas
(2019)
Amendment:
crimes based on a preponderance of the
Right to Jury
evidence violated the Fifth and Sixth
Trial
Amendment’s right to a jury trial.
Virginia House of
GINSBURG*,
Alito+, Breyer,
587 U.S. ____
Article III: Case
Civil
Virginia House of Delegates lacked standing to
Delegates v.
Gorsuch, Kagan,
Kavanaugh,
(2019); 139 S.
or Controversy
Procedure
represent the state’s interests or, in its own
Bethune-Hill
Sotomayor,
Roberts
Ct. 1945
Requirement
right, to appeal invalidation of a redistricting
Thomas
(2019)
plan.
Carpenter v.
Breyer,
Alito+,
585 U.S. ____
Fourth
Criminal Law
The government conducts a search under the
United States
GINSBURG,
Gorsuch+,
(2018); 138 S.
Amendment
and Procedure
Fourth Amendment and must general y obtain a
Kagan, Roberts*,
Kennedy+,
Ct. 2206
search warrant when it accesses historical cel -
Sotomayor
Thomas+
(2018)
site location records.
Sessions v. Dimaya Breyer,
Alito, Kennedy,
584 U.S. ____
Fifth
Criminal Law
Federal criminal code’s residual clause in its
GINSBURG,
Roberts+,
(2018); 138 S.
Amendment
and
definition of “crime of violence,” as
Gorsuch+, Kagan*,
Thomas+
Ct. 1204
Procedure;
incorporated into the Immigration and
Sotomayor
(2018)
Immigration
Nationality Act’s definition of “aggravated
Law
felony,” is unconstitutional y vague.
South Dakota v.
Alito, GINSBURG,
Breyer, Kagan,
585 U.S. ____
Article I:
Tax Law
State could require out-of-state sel er with no
Wayfair, Inc.
Gorsuch+,
Roberts+,
(2018); 138 S.
Commerce
physical presence in the state to col ect and
Kennedy*,
Sotomayor
Ct. 2080
Clause
remit sales taxes, overruling prior Supreme
Thomas+
(2018)
Court precedent holding to the contrary.
McWilliams v.
Breyer*,
Alito+,
582 U.S. ____
Fourteenth
Habeas
State did not satisfy due process requirements
Dunn
GINSBURG,
Gorsuch,
(2017); 137 S.
Amendment:
Corpus
when it failed to provide defendant with mental
Kagan, Kennedy,
Roberts,
Ct. 1790
Due Process
health expert to assist in evaluating, preparing,
Sotomayor
Thomas
(2017)
and presenting defense to capital murder
charges.
CRS-5
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Moore v. Texas
Breyer,
Alito, Roberts+, 581 U.S. ____
Eighth
Habeas
State court’s standard for determining whether
GINSBURG*,
Thomas
(2017); 137 S.
Amendment:
Corpus
capital defendant was intel ectual y disabled did
Kagan, Kennedy,
Ct. 1039
Cruel and
not comport with the Eighth Amendment.
Sotomayor
(2017)
Unusual
Punishment
Clause
Murr v. Wisconsin
Breyer,
Alito, Roberts+, 582 U.S. ____
Fifth
Takings
Courts must consider a number of factors in
GINSBURG,
Thomas+
(2017); 137 S.
Amendment:
determining the proper denominator for
Kagan, Kennedy*,
Ct. 1933
Takings Clause
purposes of a takings inquiry, including the
Sotomayor
(2017)
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.
Breyer,
Alito+, Roberts, 580 U.S. ____
Sixth
Criminal Law
The “no-impeachment” rule does not apply
Colorado
GINSBURG,
Thomas+
(2017); 137 S.
Amendment:
and Procedure
when a juror makes clear statements indicating
Kagan, Kennedy*,
Ct. 855 (2017) Right to Jury
that he relied on racial stereotypes or animus
Sotomayor
Trial; Fourteenth
when voting to convict a criminal defendant.
Amendment:
Equal Protection
Clause
Cooper v. Harris
Breyer,
Alito+,
581 U.S. ____
Fourteenth
Election Law;
North Carolina officials unconstitutional y
GINSBURG,
Kennedy,
(2017); 137 S.
Amendment:
Civil Rights
considered race as the predominant factor in
Kagan*,
Roberts
Ct. 1455
Equal Protection
Law
creating legislative districts.
Sotomayor,
(2017)
Clause
Thomas+
Fisher v. Univ. of
Breyer,
Alito+, Roberts, 579 U.S. ____
Fourteenth
Civil Rights
University’s race-conscious admissions program
Tex. Austin
GINSBURG,
Thomas+
(2016); 136 S.
Amendment:
Law; Education did not violate the Equal Protection Clause.
Kennedy*,
Ct. 2198
Equal Protection
Law
Sotomayor
(2016)
Clause
CRS-6
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Luis v. United
Breyer*,
Alito, Kagan+,
578 U.S. ____
Sixth
Criminal Law
Pretrial restraint of defendant’s legitimate,
States
GINSBURG,
Kennedy+
(2016); 136 S.
Amendment:
and Procedure
untainted assets that are needed to retain
Roberts,
Ct. 1083
Right to Counsel
counsel of choice violates the Sixth
Sotomayor,
(2016)
Amendment.
Thomas+
Whole Woman’s
Breyer*,
Alito+, Roberts, 579 U.S. ____
Fourteenth
Abortion Law
State laws imposed an undue burden on
Health v.
GINSBURG+,
Thomas+
(2016); 136 S.
Amendment
women’s right to seek pre-viability abortions.
Hellerstedt
Kagan, Kennedy,
Ct. 2292
Sotomayor
(2016)
Williams v.
Breyer,
Alito, Roberts+, 579 U.S. ____
Fourteenth
Criminal Law
Due process compel ed recusal of judge
Pennsylvania
GINSBURG,
Thomas+
(2016); 136 S.
Amendment:
and
presiding over death penalty case when the
Kagan, Kennedy*,
Ct. 1899
Due Process
Procedure;
judge previously had been involved in the case
Sotomayor
(2016)
Clause
Judicial System
as a prosecutor.
Ala. Legislative
Breyer*,
Alito, Roberts,
575 U.S. 254
Fourteenth
Election Law;
District court applied incorrect legal standards
Black Caucus v.
GINSBURG,
Scalia+,
(2015)
Amendment:
Civil Rights
when evaluating whether changes to electoral
Alabama
Kagan, Kennedy,
Thomas+
Equal Protection
Law
districts constituted an unlawful racial
Sotomayor
Clause
gerrymander.
Ariz. State
Breyer,
Alito, Roberts+, 576 U.S. 787
Article I:
Election Law
Bal ot initiative creating state congressional
Legislature v. Ariz. GINSBURG*,
Scalia+,
(2015)
Elections Clause
redistricting commission did not violate the
Indep.
Kagan, Kennedy,
Thomas+
Constitution’s Elections Clause.
Redistricting
Sotomayor
Comm’n
Brumfield v. Cain
Breyer,
Alito+, Roberts, 576 U.S. 305
Eighth
Habeas
Habeas corpus petitioner on death row was
GINSBURG,
Scalia, Thomas+ (2015)
Amendment:
Corpus
entitled to a hearing on his claim that he
Kagan, Kennedy,
Cruel and
suffered from an intel ectual disability that
Sotomayor*
Unusual
would render his execution unconstitutional.
Punishment
Clause
CRS-7
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
City of Los
Breyer,
Alito+, Roberts, 576 U.S. 409
Fourth
Criminal Law
Municipal code provision requiring hotel
Angeles v. Patel
GINSBURG,
Scalia+, Thomas (2015)
Amendment
and Procedure
operators to provide guest information to
Kagan, Kennedy,
requesting police officers violated the Fourth
Sotomayor*
Amendment.
Kingsley v.
Breyer*,
Alito+, Roberts, 576 U.S. 389
Fourteenth
Civil Rights
To prevail on an excessive force claim, a pretrial
Hendrickson
GINSBURG,
Scalia+, Thomas (2015)
Amendment:
Law
detainee need only show that the force used
Kagan, Kennedy,
Due Process
was objectively unreasonable.
Sotomayor
Clause
Obergefell v.
Breyer,
Alito+,
576 U.S. 644
Fourteenth
Family Law;
A state, by failing to recognize marriages
Hodges
GINSBURG,
Roberts+,
(2015)
Amendment:
Civil Rights
between same-sex couples, violated the Equal
Kagan, Kennedy*
Scalia+,
Due Process
Law
Protection and Due Process Clauses of the
Sotomayor
Thomas+
Clause;
Fourteenth Amendment.
Fourteenth
Amendment:
Equal Protection
Clause
Walker v. Texas
Breyer*,
Alito+,
576 U.S. 200
First
Freedom of
Texas did not violate the First Amendment by
Div., Sons of
GINSBURG,
Kennedy,
(2015)
Amendment:
Speech
rejecting a proposed specialty license plate
Confederate
Kagan, Sotomayor,
Roberts, Scalia
Free Speech
design featuring a Confederate battle flag
Veterans, Inc.
Thomas
Clause
because specialty license plates are government
speech.
Williams-Yulee v.
Breyer+,
Alito+,
575 U.S. 433
First
Freedom of
State law prohibiting candidates for state
Fla. Bar
GINSBURG+,
Kennedy+,
(2015)
Amendment:
Speech;
judgeships from personal y soliciting campaign
Kagan, Roberts*,
Scalia+, Thomas
Free Speech
Election Law
funds did not violate the First Amendment, and
Sotomayor
Clause
states have substantial latitude to regulate
campaign finance in judicial elections.
CRS-8
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Hall v. Florida
Breyer,
Alito+, Roberts, 572 U.S. 701
Eighth
Criminal Law
State’s capital punishment regime created an
GINSBURG,
Scalia, Thomas
(2014)
Amendment:
and Procedure
unacceptable risk of unconstitutional y executing
Kagan, Kennedy*,
Cruel and
persons with intel ectual disabilities.
Sotomayor
Unusual
Punishment
Clause
Alleyne v. United
Breyer+,
Alito+,
570 U.S. 99
Sixth
Criminal Law
Any fact that increases the mandatory minimum
States
GINSBURG,
Kennedy,
(2013)
Amendment:
and Procedure
sentence is an element of the offense that must
Kagan,
Roberts+, Scalia
Right to Jury
be submitted to the jury.
Sotomayor+,
Trial
Thomas*
Florida v. Jardines
GINSBURG,
Alito+, Breyer,
569 U.S. 1
Fourth
Criminal Law
The use of a drug-sniffing dog on a
Kagan+, Scalia*,
Kennedy,
(2013)
Amendment
and Procedure
homeowner’s porch to investigate the contents
Sotomayor,
Roberts
of the home is a search under the Fourth
Thomas
Amendment.
Hollingsworth v.
Alito, GINSBURG,
Alito,
570 U.S. 693
Article III: Case
Civil
Proponents of a California law prohibiting same-
Perry
Kagan, Roberts*,
Kennedy+,
(2013)
or Controversy
Procedure
sex marriage lacked standing to appeal the
Scalia
Sotomayor,
Requirement
district court’s order invalidating the law.
Thomas
Missouri v.
GINSBURG,
Alito, Breyer,
569 U.S. 141
Fourth
Criminal Law
Natural metabolization of alcohol in the
McNeely
Kagan, Kennedy+,
Roberts+,
(2013)
Amendment
and Procedure
bloodstream does not create a categorical
Scalia, Sotomayor*
Thomas+
exception to the search warrant requirement to
al ow for warrantless, nonconsensual blood
testing in drunk driving cases.
Peugh v. United
Breyer,
Alito+, Roberts, 569 U.S. 530
Article I: Ex Post Criminal Law
Sentencing a criminal defendant under current
States
GINSBURG,
Scalia, Thomas+ (2013)
Facto Clause
and Procedure
sentencing guidelines violates the Ex Post Facto
Kagan, Kennedy,
Clause if the applicable sentencing range would
Sotomayor*
be higher than the sentencing guidelines that
were in effect at the time of the offense.
CRS-9
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Trevino v. Thaler
Breyer*,
Alito, Roberts+, 569 U.S. 413
Sixth
Habeas
Under specified circumstances, federal habeas
GINSBURG,
Scalia+, Thomas (2013)
Amendment:
Corpus
courts can entertain certain ineffective
Kagan, Kennedy,
Right to Counsel
assistance of counsel claims even if they are
Sotomayor
procedural y defective.
United States v.
Breyer,
Alito+,
570 U.S. 744
Fifth
Family Law;
Federal statute defining marriage to exclude
Windsor
GINSBURG,
Roberts+,
(2013)
Amendment:
Civil Rights
same-sex partnerships was unconstitutional.
Kagan, Kennedy*,
Scalia+, Thomas
Due Process
Law
Sotomayor
Clause
Lafler v. Cooper
Breyer,
Alito+, Roberts, 566 U.S. 156
Sixth
Criminal Law
Defense counsel prejudicial y rendered
GINSBURG,
Scalia+, Thomas (2012)
Amendment:
and
ineffective assistance by advising the criminal
Kagan, Kennedy*,
Right to Counsel Procedure;
defendant to reject plea offer.
Sotomayor
Habeas
Corpus
Miller v. Alabama
Breyer+,
Alito+,
567 U.S. 460
Eighth
Criminal Law
Sentences mandating life imprisonment without
GINSBURG,
Roberts+,
(2012)
Amendment:
and Procedure
the possibility of parole for juveniles violated
Kagan*, Kennedy,
Scalia, Thomas+
Cruel and
the Eighth Amendment.
Sotomayor+
Unusual
Punishment
Clause
Missouri v. Frye
Breyer,
Alito, Roberts,
566 U.S. 134
Sixth
Habeas
Criminal defense counsel must timely
GINSBURG,
Scalia+, Thomas (2012)
Amendment:
Corpus
communicate favorable plea offers to the
Kagan, Kennedy*,
Right to Counsel
defendant.
Sotomayor
National
Breyer,
Alito+,
567 U.S. 519
Taxing and
Separation of
The Patient Protection and Affordable Care
Federation of
GINSBURG+,
Kennedy+,
(2012)
Spending Clause
Powers
Act’s individual mandate requiring most
Independent
Kagan, Roberts*,
Scalia+,
Americans to purchase health insurance or else
Businesses v.
Sotomayor
Thomas+
pay a penalty is a valid exercise of Congress’s
Sebelius
taxing power and is also authorized under the
Commerce Clause.b
CRS-10
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Brown v. Plata
Breyer,
Alito+, Roberts, 563 U.S. 493
Eighth
Civil Rights
Caps on the population of overcrowded state
GINSBURG,
Scalia+, Thomas (2011)
Amendment:
Law
prisons were necessary to remedy violations of
Kagan, Kennedy*,
Cruel and
prisoners’ constitutional rights.
Sotomayor
Unusual
Punishments
Clause
Bullcoming v. New
GINSBURG*,
Alito, Breyer,
564 U.S. 647
Sixth
Criminal Law
The Confrontation Clause does not al ow
Mexico
Kagan, Scalia,
Kennedy+,
(2011)
Amendment:
and Procedure
prosecutors to introduce a blood-alcohol test
Sotomayor+,
Roberts
Confrontation
without the testimony of the analyst who
Thomas
Clause
performed the test.
JDB v. North
Breyer,
Alito+, Roberts, 564 U.S. 261
Fifth
Criminal Law
A juvenile defendant’s age is general y relevant
Carolina
GINSBURG,
Scalia, Thomas
(2011)
Amendment:
and Procedure
to whether that juvenile is in custody for the
Kagan, Kennedy,
Self-
purposes of the Miranda doctrine.
Sotomayor*
Incrimination
Clause
Turner v. Rogers
Breyer*,
Alito, Roberts,
564 U.S. 431
Fourteenth
Family Law
The Due Process Clause does not automatical y
GINSBURG,
Scalia, Thomas+ (2011)
Amendment:
require appointment of counsel to indigent
Kagan, Kennedy,
Due Process
parties in civil contempt proceedings in child
Sotomayor
Clause
support cases, but the failure to provide
alternate procedural safeguards in such cases
can violate due process.
Christian Legal
Breyer,
Alito+, Roberts, 561 U.S. 661
First
Freedom of
School did not violate First Amendment by
Soc’y v. Martinez
GINSBURG*,
Scalia, Thomas
(2010)
Amendment:
Religion;
refusing to recognize a student organization that
Kennedy+,
Free Speech
Freedom of
did not accept al students who wished to join
Sotomayor,
Clause; First
Association
the organization, including those who did not
Stevens+
Amendment:
share the organization’s views about religion
Free Exercise
and sexual orientation.
Clause
CRS-11
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Sears v. Upton
Per Curiam
Alito, Roberts,
561 U.S. 945
Sixth
Habeas
State postconviction court failed to apply
(Breyer,
Scalia+, Thomas (2010)
Amendment:
Corpus
proper legal standards when assessing whether
GINSBURG,
Right to Counsel
inadequacies in defense counsel’s mitigation
Kennedy,
investigation prejudiced the petitioner.
Sotomayor,
Stevens)
Wellons v. Hall
Per Curiam
Alito+, Roberts, 558 U.S. 220
Fourteenth
Habeas
Capital murder defendant was not barred from
(Breyer,
Scalia+, Thomas (2010)
Amendment:
Corpus;
pursuing claims of judge, juror, and bailiff
GINSBURG,
Due Process
Judicial System
misconduct.
Kennedy,
Clause
Sotomayor,
Stevens)
Arizona v. Gant
GINSBURG,
Alito+,
556 U.S. 332
Fourth
Criminal Law
The search-incident-to-arrest exception to the
Scalia+, Souter,
Breyer+,
(2009)
Amendment
and Procedure
Fourth Amendment’s warrant requirement does
Stevens+, Thomas
Kennedy,
not permit police to search a defendant’s car if
Roberts
the defendant poses no threat to the officer’s
safety or to the preservation of evidence.
Caperton v. A.T.
Breyer,
Alito, Roberts+, 556 U.S. 868
Fourteenth
Judicial System
Due Process Clause requires recusal when a
Massey Coal Co.
GINSBURG,
Scalia+, Thomas (2009)
Amendment:
judge’s failure to do so would create a
Kennedy*, Souter,
Due Process
constitutional y intolerable probability of bias.
Stevens
Clause
Haywood v.
Breyer,
Alito, Roberts,
556 U.S. 729
Article VI:
Civil Rights
State law that divested state courts of general
Drown
GINSBURG,
Scalia, Thomas+ (2009)
Supremacy
Law; Judicial
jurisdiction over suits filed under 42 U.S.C. §
Kennedy, Souter,
Clause
System
1983 for monetary damages against state
Stevens*
corrections officers violated the Supremacy
Clause.
Melendez-Diaz v.
GINSBURG,
Alito, Breyer,
557 U.S. 305
Sixth
Criminal Law
An affidavit of a forensic analyst admitted against
Massachusetts
Scalia*, Souter,
Kennedy+,
(2009)
Amendment:
and Procedure
a defendant is testimonial evidence and thus
Stevens, Thomas+
Roberts
Confrontation
subject to the requirements of the Sixth
Clause
Amendment’s Confrontation Clause
CRS-12
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Oregon v. Ice
Alito, Breyer,
Roberts,
555 U.S. 160
Sixth
Criminal Law
Sixth Amendment did not prohibit states from
GINSBURG*,
Scalia+, Souter,
(2009)
Amendment:
and Procedure
al owing judges (rather than juries) to find facts
Kennedy, Stevens
Thomas
Right to Jury
necessary to support imposing consecutive
Trial
criminal sentences.
Boumediene v.
Breyer,
Alito, Roberts+, 553 U.S. 723
Article I:
National
Enemy bel igerents detained at Guantanamo Bay
Bush
GINSBURG,
Scalia+, Thomas (2008)
Suspension
Security;
were entitled to seek habeas review of the
Kennedy*,
Clause
Habeas
legality of their detention.
Souter+, Stevens
Corpus
Kennedy v.
Breyer,
Alito+, Roberts, 554 U.S. 407
Eighth
Criminal Law
The Eighth Amendment forbids imposing the
Louisiana
GINSBURG,
Scalia, Thomas
(2008)
Amendment:
and Procedure
death penalty for the rape of a child in a case
Kennedy*, Souter,
Cruel and Usual
where the victim did not die and the defendant
Stevens
Punishment
did not intend the victim’s death.
Clause
Sprint Commc’ns
Breyer*,
Alito, Roberts+, 554 U.S. 269
Article III
Judicial System;
Assignees of payphone operators had standing
Co. v. APCC
GINSBURG,
Scalia, Thomas
(2008)
Communicatio
to sue long-distance carriers.
Servs., Inc.
Kennedy, Souter,
ns Law
Stevens
Abdul-Kabir v.
Breyer,
Alito, Roberts+, 550 U.S. 233
Eighth
Habeas
State court improperly rejected capital
Quarterman
GINSBURG,
Scalia+, Thomas (2007)
Amendment:
Corpus
defendant’s claim that the sentencing jury was
Kennedy, Souter,
Cruel and
unable to consider mitigating evidence
Stevens*
Unusual
concerning the defendant’s family background
Punishment
and mental defects.
Clause
Massachusetts v.
Breyer,
Alito, Roberts+, 549 U.S. 497
Article III
Judicial System;
State had standing to chal enge the
EPA
GINSBURG,
Scalia+, Thomas (2007)
Environmental
Environmental Protection Agency’s (EPA’s)
Kennedy, Souter,
Law
al eged failure to regulate greenhouse gases
Stevens*
adequately; greenhouse gases fit within the
Clean Air Act’s definition of “air pol utant” and
therefore fel within EPA’s regulatory authority.
CRS-13
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Panetti v.
Breyer,
Alito, Roberts,
551 U.S. 930
Eighth
Habeas
State failed to afford petitioner a constitutional y
Quarterman
GINSBURG,
Scalia, Thomas+ (2007)
Amendment:
Corpus
adequate procedure to prove he lacked the
Kennedy*, Souter,
Cruel and
mental competency required to be subject to
Stevens
Unusual
capital punishment.
Punishment
Clause
Brewer v.
Breyer,
Alito, Roberts+, 550 U.S. 286
Eighth
Habeas
Jury instructions in a capital murder case did not
Quarterman
GINSBURG,
Scalia+, Thomas (2007)
Amendment:
Corpus
provide the sentencing jury an adequate
Kennedy, Souter,
Cruel and
opportunity to consider mitigating evidence.
Stevens*
Unusual
Punishment
Clause
Smith v. Texas
Breyer,
Alito+, Roberts, 550 U.S. 297
Eighth
Habeas
Erroneous jury instructions in capital murder
GINSBURG,
Scalia, Thomas
(2007)
Amendment:
Corpus
case entitled the petitioner to habeas corpus
Kennedy*,
Cruel and
relief.
Souter+, Stevens
Unusual
Punishment
Clause
Central Va.
Breyer,
Kennedy,
546 U.S. 356
Article I, Section
Bankruptcy
A bankruptcy trustee’s proceeding to set aside
Community
GINSBURG,
Roberts, Scalia,
(2006)
8
Law
the debtor’s preferential transfers to state
College v. Katz
O’Connor, Souter,
Thomas+
agencies is not barred by the doctrine of
Stevens*
sovereign immunity.
Georgia v.
Breyer+,
Roberts+,
547 U.S. 103
Fourth
Criminal Law
A physical y present inhabitant’s express refusal
Randolph
GINSBURG,
Scalia+, Thomas (2006)
Amendment
and Procedure
of consent to a police search of his home
Kennedy, Souter*,
overrides the consent of a fel ow occupant,
Stevens+
necessitating a warrant for such a search.
CRS-14
link to page 7
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Constitutional
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Jones v. Flowers
Breyer,
Kennedy, Scalia, 547 U.S. 220
Fourth
Takings Law
When notice of a tax sale of a home for unpaid
GINSBURG,
Thomas+
(2006)
Amendment:
taxes is mailed to the homeowner and returned
Roberts*, Souter,
Due Process
undelivered, the government must take
Stevens
Clause
additional reasonable steps to provide notice
before sel ing the property.
United States v.
Breyer,
Alito+,
548 U.S. 140
Sixth
Criminal Law
A trial court’s erroneous deprivation of a
Gonzalez-Lopez
GINSBURG,
Kennedy,
(2006)
Amendment:
and Procedure
criminal defendant’s choice of counsel entitles
Scalia*, Souter,
Roberts,
Right to Counsel
the defendant to a reversal of his conviction.
Stevens
Thomas
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 control ing 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 Roberts’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
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Including Those
Including
Case
Statutory
Position in the Case
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Dep’t of
Breyer,
Alito+,
591 U.S. ____
Administrative
Administrative
Department of Homeland Security provided an
Homeland
GINSBURG, Kagan, Gorsuch,
(2020); 140 S.
Procedure Act
Law;
inadequate explanation for the rescission of the
Security v.
Roberts*,
Kavanaugh+,
Ct. 1891
Immigration
Deferred Action for Childhood Arrival
Regents of the
Sotomayor+
Thomas+
(2020)
Law
program, rendering that rescission arbitrary and
University of
capricious.
California
McGirt v.
Breyer,
Alito,
591 U.S. ____
Major Crimes
Criminal Law
Land reserved for the Muscogee (Creek)
Oklahoma
GINSBURG,
Kavanaugh,
(2020); 140 S.
Act
and
Nation in the 19th century remained “Indian
Gorsuch*, Kagan,
Roberts+,
Ct. 2452
Procedure;
country” for criminal jurisdiction purposes
Sotomayor
Thomas+
(2020)
Indian Law
under the Major Crimes Act, thereby general y
limiting Oklahoma’s authority to prosecute
Indians for crimes committed on that land.
Dep’t of
Breyer+,
Alito+,
588 U.S. ____
Administrative
Administrative
The Commerce Secretary provided a
Commerce v.
GINSBURG, Kagan, Gorsuch,
(2020); 139 S.
Procedure Act
Law
pretextual explanation for including a citizenship
New York
Roberts*,
Kavanaugh,
Ct. 2551
question on the census, warranting remand to
Sotomayor
Thomas+
(2019)
the agency.
Kisor v. Wilkie
Breyer,
Alito,
588 U.S. ____
Administrative
Administrative
The judicial doctrine set forth in Auer v. Robbins,
GINSBURG,
Gorsuch+,
(2020); 139 S.
Procedure Act
Law
519 U.S. 452 (1997) and Bowles v. Seminole Rock
Kagan*, Roberts+,
Kavanaugh,
Ct. 2400
& Sand Co., 325 U.S. 410 (1945), under which
Sotomayor
Thomas
(2019)
courts defer to agency interpretations of their
own ambiguous regulations, remains control ing
law.
Apple Inc. v.
Breyer,
Alito,
587 U.S. ____
Clayton Antitrust Business Law
iPhone owners who purchased apps from
Pepper, et al.
GINSBURG, Kagan, Gorsuch+,
(2019); 139 S.
Act
Apple’s app store were “direct purchasers” and
Kavanaugh*,
Roberts,
Ct. 1514
could thus sue Apple for al eged monopolization
Sotomayor
Thomas
(2019)
of apps.
CRS-16
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Home Depot
Breyer,
Alito+,
587 U.S. ____
General Removal
Judicial System
Neither the Class Action Fairness Act nor the
U.S.A., Inc. v.
GINSBURG, Kagan, Gorsuch,
(2019); 139 S.
Provision (28
general statute permitting the removal of state
Jackson
Sotomayor,
Kavanaugh,
Ct. 1743
U.S.C. § 1441);
civil actions to federal court permit a third-
Thomas*
Roberts
(2019)
Class Action
party counterclaim defendant to remove the
Fairness Act
counterclaim filed against it to federal court.
Mont v. United
Alito, GINSBURG,
Breyer,
587 U.S. ____
18 U.S.C.
Criminal Law
A criminal defendant’s period of supervised
States
Kavanaugh,
Gorsuch,
(2019); 139 S.
§ 3624(e)
and Procedure
release fol owing incarceration may be tol ed if
Roberts, Thomas*
Kagan,
Ct. 1826
the defendant is later charged with another
Sotomayor+
(2019)
crime and placed in pretrial detention.
Artis v. District of
Breyer,
Alito,
583 U.S. ____
28 U.S.C. § 1367
Judicial System
If a federal district court exercising
Columbia
GINSBURG*,
Gorsuch+,
(2018); 138 S.
supplemental jurisdiction over state claims
Kagan, Roberts,
Kennedy,
Ct. 594 (2018)
dismissed those claims, Section 1367(d)’s
Sotomayor
Thomas
instruction to “tol ” 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.
Alito, Breyer*,
Kagan,
585 U.S. ____
Sentencing
Criminal Law
District court’s explanation for reducing
United States
GINSBURG,
Kennedy+,
(2018); 138 S.
Reform Act of
and Procedure
defendant’s sentence that was not as low as the
Roberts, Thomas
Sotomayor
Ct. 1959
1984
defendant requested was adequate.
(2018)
Ocasio v. United
Alito*, Breyer+,
Roberts,
578 U.S. ____
Hobbs Act
Criminal Law
Defendant could be convicted of conspiracy to
States
GINSBURG, Kagan, Sotomayor+,
(2016); 136 S.
and Procedure
violate the Hobbs Act upon proof that he
Kennedy
Thomas+
Ct. 1423
reached an agreement to obtain property under
(2016)
color of official right.
Torres v. Lynch
Alito, GINSBURG,
Breyer,
578 U.S. ____
Immigration and
Immigration
Alien’s conviction for state crime constituted an
Kagan*, Kennedy,
Sotomayor+,
(2016); 136 S.
Nationality Act
Law
aggravated felony rendering alien ineligible for
Roberts
Thomas
Ct. 1619
cancel ation of removal; state crime had al the
(2016)
requisite elements of the listed federal offense
except for a connection to interstate
commerce.
CRS-17
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Texas Dep’t of
Breyer,
Alito+, Roberts, 576 U.S. 519
Fair Housing Act
Civil Rights
Disparate impact claims were cognizable under
Hous. & Cmty.
GINSBURG, Kagan, Scalia, Thomas+
(2015)
Law
the Fair Housing Act.
Affairs v. Inclusive
Kennedy*,
Cmtys. Project,
Sotomayor
Inc.
United States v.
Breyer,
Alito+, Roberts, 575 U.S. 402
Federal Tort
Civil Liability;
The Federal Tort Claims Act’s time limitations
Kwai Fun Wong
GINSBURG,
Scalia, Thomas
(2015)
Claims Act
Judicial System
were nonjurisdictional and could accordingly be
Kagan*, Kennedy,
extended pursuant to equitable tol ing
Sotomayor
principles.
Yates v. United
Alito+, Breyer,
Kagan+,
574 U.S. 528
Sarbanes-Oxley
Business Law;
Commercial fisherman who disposed of
States
GINSBURG*,
Kennedy, Scalia,
(2015)
Act
Criminal Law
undersized fish to prevent law enforcement
Roberts,
Thomas
and Procedure
detection could not be charged under Sarbanes-
Sotomayor
Oxley Act for destruction of “tangible objects”
to impede a governmental investigation.
Dart Cherokee
Alito, Breyer,
Kagan,
574 U.S. 81
28 U. S. C.
Judicial System
A defendant’s notice of removal need include
Basin Operating
GINSBURG*,
Kennedy,
(2014)
§ 1446(a)
only a plausible al egation that the amount in
Company LLC v.
Roberts,
Scalia+,
controversy exceeds the jurisdictional
Owens
Sotomayor
Thomas+
threshold and need not contain evidentiary
submissions.
Abramski v.
Breyer,
Alito, Roberts,
573 U.S. 169
Gun Control Act
Criminal Law
Straw firearms purchasers who presented
United States
GINSBURG,
Scalia+, Thomas (2014)
and Procedure
themselves as the actual buyers of those
Kagan*, Kennedy,
firearms, despite purchasing them on another’s
Sotomayor
behalf, made false statements in violation of the
Gun Control Act.
Paroline v. United
Alito, Breyer,
Roberts+,
572 U.S. 434
Mandatory
Criminal Law
Restitution for child pornography possession
States
GINSBURG, Kagan, Scalia,
(2014)
Victims
and Procedure
should be awarded in amount comporting with
Kennedy*
Sotomayor+,
Restitution Act
the defendant’s relative role in the causal
Thomas
process underlying the victim’s losses.
CRS-18
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Scialabba v.
GINSBURG,
Alito+, Breyer,
573 U.S. 41
Child Status
Administrative
Interpretation given to the Child Status
Cuellar de Osorio
Kagan*, Kennedy,
Sotomayor+,
(2014)
Protection Act
Law;
Protection Act by the Board of Immigration
Roberts+, Scalia
Thomas
Immigration
Appeals was reasonable and entitled to
Law
deference.
FTC v. Actavis,
Breyer*,
Roberts+,
570 U.S. 136
Hatch-Waxman
Business Law
Reverse payment settlements in patent
Inc.
GINSBURG, Kagan, Scalia, Thomas
(2013)
Act; Federal
infringement litigation could violate antitrust
Kennedy,
Trade
laws under certain circumstances.
Sotomayor
Commission Act
McQuiggin v.
Breyer,
Alito, Roberts,
569 U.S. 383
Antiterrorism
Habeas
Petitioner’s plea of actual innocence could
Perkins
GINSBURG*,
Scalia+, Thomas (2013)
and Effective
Corpus
potential y overcome statute of limitations in
Kagan, Kennedy,
Death Penalty
habeas corpus statute; timing of the filing of a
Sotomayor
Act
petition is relevant to assessment of petitioner’s
proof of innocence.
US Airways, Inc. v. Breyer,
Alito, Roberts,
569 U.S. 88
Employment
Labor and
Equitable principles could not override the plain
McCutchen
GINSBURG,
Scalia+, Thomas (2013)
Retirement
Employment
terms of a plan established under the Employee
Kagan*, Kennedy,
Income Security
Law; Business
Retirement Income Security Act (ERISA), but
Sotomayor
Act
Law
equitable principles could influence the
interpretation of an ERISA plan whose terms
were not plain.
Arizona v. United
Breyer,
Alito+, Scalia+,
567 U.S. 387
Immigration and
Immigration
Federal law preempted several provisions of a
States
GINSBURG,
Thomas+
(2012)
Nationality Act
Law
state statute relating to aliens present in the
Kennedy*, Roberts,
United States without authorization.
Sotomayor
Dorsey v. United
Breyer*,
Alito, Roberts,
567 U.S. 260
Fair Sentencing
Criminal Law
Fair Sentencing Act’s new, lower mandatory
States
GINSBURG, Kagan, Scalia+, Thomas (2012)
Act
and Procedure
minimums apply to those sentenced after the
Kennedy,
enactment of the law for offenses committed
Sotomayor
prior to the law’s enactment.
CRS-19
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
CSX
Breyer,
Alito, Kennedy,
564 U.S. 685
Federal
Civil Liability;
To prove liability under the Federal Employers’
Transportation v.
GINSBURG*,
Roberts+, Scalia (2011)
Employers’
Labor and
Liability Act, a railroad worker does not need
McBride
Kagan, Sotomayor,
Liability Act
Employment
to satisfy the common-law proximate cause
Thomas
Law
standard, but only show that the railroad’s
negligence played a part in plaintiff employee’s
injury.
Freeman v.
Breyer,
Alito, Roberts+,
564 U.S. 522
Federal Rule of
Criminal Law
Defendants who enter into plea agreements
United States
GINSBURG, Kagan, Scalia, Thomas
(2011)
Criminal
and Procedure
that recommend a particular sentence as a
Kennedy*,
Procedure
condition of the guilty plea may be eligible for a
Sotomayor
11(c)(1)(C);
sentence reduction under 18 U.S.C. §
Sentencing
3582(c)(2) if the applicable sentencing guidelines
Reform Act
range has been lowered by retroactive
amendment.
Dolan v. United
Alito, Breyer*,
Kennedy,
560 U.S. 605
Mandatory
Criminal Law
A sentencing court that missed the Mandatory
States
GINSBURG,
Roberts*, Scalia, (2010)
Victims
and Procedure
Victims Restitution Act’s 90-day deadline for
Sotomayor,
Stevens
Restitution Act
determining the amount of restitution
Thomas
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.
Alito,
Breyer+,
559 U.S. 1
Racketeer
Civil Liability;
New York City could not use Racketeer
City of New York
GINSBURG+,
Kennedy,
(2010)
Influenced and
Food and Drug Influenced and Corrupt Organizations Act to
Roberts*, Scalia,
Stevens
Corrupt
Law
col ect tobacco taxes that it could not
Thomas
Organizations
permissibly col ect on out-of-state sel ers due
Act (RICO)
to the Commerce Clause.
CRS-20
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Atlantic Sounding
Breyer,
Alito+,
557 U.S. 404
Jones Act
Maritime Law
An injured seaman may recover punitive
Co, Inc. v.
GINSBURG,
Kennedy,
(2009)
damages for the wil ful and wanton disregard of
Townsend
Thomas*, Souter,
Roberts, Scalia
the maintenance and cure obligation in general
Stevens
maritime law.
Corley v. United
Breyer,
Alito+, Roberts, 556 U.S. 303
Omnibus Crime
Criminal Law
Statute governing admissibility of confessions in
States
GINSBURG
Scalia, Thomas
(2009)
Control and Safe
and Procedure
criminal proceedings limited, but did not
Kennedy, Souter*,
Streets Act
eliminate, the applicability of the evidentiary
Stevens
exclusionary rule.
Cuomo v.
Breyer,
Alito, Kennedy,
557 U.S. 519
National Bank
Business Law
The National Bank Act and an implementing
Clearing House
GINSBURG,
Roberts,
(2009)
Act
regulation of the Office of the Comptrol er of
Assn., LLC
Souter, Stevens,
Thomas+
the Currency did not preclude ordinary
Scalia*
enforcement of state law against a national
bank.
United States v.
Breyer,
Alito, Roberts+,
556 U.S. 904
Military Justice
Military Law;
Military appel ate court had jurisdiction to
Denedo
GINSBURG,
Scalia, Thomas
(2009)
Act; Uniform
Criminal Law
entertain a chal enge to a prior criminal
Kennedy*, Souter,
Code of Military
and Procedure
conviction resulting from a guilty plea al egedly
Stevens
Justice
caused by ineffective assistance of counsel.
Vaden v. Discover
GINSBURG*,
Alito, Breyer,
556 U.S. 49
Federal
Judicial System
District court lacked subject matter jurisdiction
Bank
Kennedy, Scalia,
Roberts+,
(2009)
Arbitration Act
to entertain a petition to compel arbitration
Souter, Thomas
Stevens
because the case did not arise under the laws of
the United States.
Spears v. United
Per Curiam
Alito,
555 U.S. 261
United States
Criminal Law
District court had discretion to reject
States
(Breyer,
Kennedy+,
(2009)
Sentencing
and Procedure
categorical y the advisory federal sentencing
GINSBURG, Scalia,
Roberts+,
Guidelines
guidelines ratio used for sentencing crack
Souter, Stevens)
Thomas+
cocaine and powder cocaine convictions.
CRS-21
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Ali v. Federal
Alito, GINSBURG,
Breyer+,
552 U.S. 214
Federal Tort
Civil Liability
Bureau of Prisons employees are law
Bureau of Prisons
Roberts, Scalia,
Kennedy+,
(2008)
Claims Act
enforcement officers under the Federal Tort
Thomas*
Souter, Stevens
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.
Breyer,
Alito, Roberts,
555 U.S. 70
Federal Cigarette
Civil Liability;
Federal law did not preempt a state law unfair
Good
GINSBURG,
Scalia, Thomas+
(2008)
Labeling and
Business Law
trade practices claim against tobacco
Kennedy, Souter,
Advertising Act
manufacturer.
Stevens*
Dada v. Mukasey
Breyer,
Alito+, Roberts, 554 U.S. 1
Immigration and
Immigration
Alien had to be granted the opportunity to
GINSBURG,
Scalia+, Thomas (2008)
Nationality Act
Law
timely withdraw motion for a voluntary
Kennedy*, Souter,
departure.
Stevens
United States v.
GINSBURG,
Alito+, Breyer,
553 U.S. 507
Money
Business Law;
The term “proceeds” in the federal money
Santos
Scalia*, Souter,
Kennedy,
(2008)
Laundering
Criminal Law
laundering statute was ambiguous and,
Stevens+, Thomas
Roberts
Control Act
and Procedure
therefore, the rule of lenity applied; in present
case involving stand-alone gambling operation,
the term should mean “profits” instead of
“receipts.”
Marrama v.
Breyer,
Alito+, Roberts, 549 U.S. 365
Bankruptcy Code Business Law
Debtor could not use specialized provisions of
Citizens Bank of
GINSBURG,
Scalia, Thomas
(2007)
the Bankruptcy Code governing consumer
Mass.
Kennedy, Souter,
debtors.
Stevens*
CRS-22
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Watters v.
Alito, Breyer,
Roberts, Scalia,
550 U.S. 1
National Bank
Business Law
Bank’s mortgage business was subject to the
Wachovia Bank,
GINSBURG*,
Stevens+
(2007)
Act
superintendence of the Office of the
N.A.
Kennedy, Souter
Comptrol er of the Currency, rather than that
of the states.
Zuni Pub. Sch.
Alito, Breyer*,
Roberts,
550 U.S. 81
Federal Impact
Education Law; Secretary of Education could consider school
Dist. No. 89 v.
GINSBURG,
Scalia+,
(2007)
Aid Act
Administrative
district population when assessing whether a
Dep’t of Educ.
Kennedy+,
Souter+,
Law
state had implemented a qualifying program that
Stevens+
Thomas
equalized expenditures for free public education
among the state’s local educational agencies.
Empire
GINSBURG*,
Alito, Breyer+,
547 U.S. 677
Federal
Judicial System
The Federal Employees Health Benefits Act
HealthChoice
Roberts, Scalia,
Kennedy,
(2006)
Employees
does not provide for federal-court jurisdiction
Assurance, Inc. v.
Stevens, Thomas
Souter
Health Benefits
over a suit by a health insurance carrier seeking
McVeigh
Act
reimbursement for benefits after an enrol ee
recovered damages for injury in a state court
action.
Hamdan v.
Breyer+,
Alito+, Scalia+,
548 U.S. 557
Uniform Code of
National
President’s order violated statutes governing
Rumsfeld
GINSBURG,
Thomas+
(2006)
Military Justice;
Security
the President’s authority to convene military
Kennedy+, Souter,
Detainee
courts.
Stevens*
Treatment Act
House v. Bell
Breyer,
Roberts+,
547 U.S. 518
Antiterrorism
Habeas
Procedural default of a petitioner on death row
GINSBURG,
Scalia, Thomas
(2006)
and Effective
Corpus
who made a showing of actual innocence could
Kennedy*, Souter,
Death Penalty
be excused, and the habeas corpus petition
Stevens
Act
could proceed.
League of United
Breyer,
Alito, Roberts,
548 U.S. 399
Voting Rights Act Election Law
The redrawing of one of Texas’s legislative
Latin Am.
GINSBURG,
Scalia, Thomas
(2006)
districts violated the Voting Rights Act.
Citizens v. Perryb
Kennedy*, Souter+,
Stevens
CRS-23
link to page 19
Justices in the
Majority or
Justices
Justice Ginsburg’s
Plurality,
Dissenting,
Position in the Case
Including Those
Including
Case
Statutory
Concurring in
Partial
Citation with
Provision
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Day v.
Alito, GINSBURG*, Breyer, Scalia+,
547 U.S. 198
Antiterrorism
Habeas
District court did not reversibly err by
McDonough
Kennedy, Roberts,
Stevens+,
(2006)
and Effective
Corpus
dismissing an untimely habeas corpus petition
Souter
Thomas
Death Penalty
that state had erroneously treated as timely.
Act
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 control ing 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 appel ants did not establish that a state legislature’s decision to override a valid, court-
drawn 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 chal enge).
CRS-24
Table 3. Justice Ruth Bader Ginsburg As a Deciding Vote: Miscellaneous Legal Decisions
October 2005 Term-October 2019 Term
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Including Those
Including
Case
Position in the Case
Concurring in
Partial
Citation with
Law
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
Herrera v.
Breyer,
Alito+,
587 U.S. ____
1968 Treaty
Indian Law
The Crow Tribe’s right to hunt on “unoccupied
Wyoming
GINSBURG,
Kavanaugh,
(2019); 139 S.
Between the
lands of the United States” under a 1968 treaty
Gorsuch, Kagan,
Roberts,
Ct. 1686
United States of
did not expire when Wyoming became a state;
Sotomayor*
Thomas
(2019)
America and the
lands of Bighorn National Forest did not
Crow Tribe of
become categorical y “unoccupied” when the
Indians
forest was set aside as a national reserve.
Washington State
Breyer*,
Alito,
586 U.S. ____
1855 Treaty
Indian Law;
Treaty barred the State of Washington from
Dep’t of Licensing
GINSBURG,
Kavanaugh,
(2019); 139 S.
between the
Tax Law
imposing a tax on fuel importers traveling by
v. Cougar Den,
Gorsuch+, Kagan,
Roberts+,
Ct. 1000
United States
public highway who were members of the
Inc.
Sotomayor
Thomas
(2019)
and the Yakama
Yakama Nation.
Nation
Florida v. Georgia
Breyer*,
Alito, Kagan,
585 U.S. ___
Equitable
Environmental
Further factual findings were necessary in a
GINSBURG,
Gorsuch,
(2018); 138 S.
Apportionment
Law
water apportionment dispute between two
Kennedy, Roberts,
Thomas+
Ct. 2502
states.
Sotomayor
(2018)
Douglas v. Indep.
Breyer*,
Alito,
565 U.S. 606
Title XIX of the
Public Benefits
In light of intervening action by the Centers for
Living Ctr. of S.
GINSBURG, Kagan, Roberts+,
(2012)
Social Security
Medicare & Medicaid Services, changed
Cal., Inc.
Kennedy,
Scalia, Thomas
Act (Medicaid)
circumstances in case warranted remand for
Sotomayor
determination of whether chal enges to state
Medicaid statutes could proceed.
CRS-25
link to page 28
Justices in the
Majority or
Justices
Plurality,
Dissenting,
Justice Ginsburg’s
Position in the Case
Including Those
Including
Case
Concurring in
Partial
Citation with
Law
(If She Joined the Majority in Full,
Case Name
Judgmenta
Dissents
Year
Interpreted
Area of Law
Position Adopted by the Majority)
New Jersey v.
GINSBURG*,
Alito, Scalia+,
552 U.S. 597
Interstate
Environmental
Provision of a compact between two states did
Delaware
Kennedy, Roberts,
Stevens+
(2008)
Compact
Law
not grant one of those states exclusive
Souter, Thomas
Between New
jurisdiction over certain riparian improvements.
Jersey and
Delaware
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 five cases listed in Table 3, the only repeat voting group in the majority or control ing plurality was Breyer, GINSBURG, Gorsuch, Kagan, and Sotomayor (2
cases).
CRS-26
Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data
Author Information
Michael John Garcia
Kate R. Bowers
Section Research Manager
Legislative Attorney
Acknowledgments
Former CRS intern Adam Spiegel provided invaluable assistance in the research and preparation of this
report.
Disclaimer
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