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

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

Legal Sidebari
The Death of Justice Ruth Bader Ginsburg:
Initial Considerations for Congress
September 21, 2020
On September 18, 2020, Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court
of the United States, passed away at the age of eighty-seven, vacating a seat on the High Court that she
had held for twenty-seven years. Nominated to replace Justice Byron White in 1993, Justice Ginsburg
already had a trailblazing career as a law school professor; Supreme Court litigator; co-founder of the
American Civil Liberties Union’s Women’s Rights Project; and judge on the U.S. Court of Appeals for
the D.C. Circuit (D.C. Circuit) for thirteen years. Several of her opinions have been consequential,
including her 1996 majority opinion in United States v. Virginia, holding that women could not be denied
admission to the Virginia Military Institute on the basis of their sex. Justice Brett Kavanaugh said in a
recent statement that “no American has ever done more than Justice Ginsburg to ensure equal justice
under law for women.”
Justice Ginsburg was also noted for her pointed dissents, including in Shelby County v. Holder (2013),
where the Court struck down a key provision of the Voting Rights Act of 1965, and in Ledbetter v.
Goodyear Tire & Rubber Co. (2007), where the Court rejected a Title VII employment discrimination
claim. In more recent years, Justice Ginsburg gained recognition in popular culture, becoming known by
the moniker “the notorious RBG.” She was the subject of books, movies, and an opera, and in 2015, was
named one of Time magazine’s one hundred most influential people.
But popular characterizations of Justice Ginsburg as a “liberal firebrand,” frequently at odds with the
Court’s conservative wing, may paint an incomplete picture of the Justice’s tenure on the Court.
According to one study, Justice Ginsburg authored more majority opinions than any other Justice on the
bench during the same period as her. And despite attention garnered by her dissents, Justice Ginsburg
authored fewer dissents than Justices Stephen Breyer, Antonin Scalia, John Paul Stevens, and Clarence
Thomas during that time. Justice Ginsburg’s majority opinions, moreover, rarely involved closely divided
disputes on hot-button social and political topics. Instead, these (frequently unanimous) opinions
addressed more esoteric issues like securities law (e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd.
(2007)), criminal sentencing procedures (e.g., Ring v. Arizona (2002)), and various complex civil
procedure issues (e.g., Goodyear Dunlop Tires Operations, S.A. v. Brown (2011); Exxon Mobil Corp. v.
Saudi Basic Industries Corp. (2005); Porter v. Nussle (2002); New Hampshire v. Maine (2001); Amchem
Products, Inc. v. Windsor (1997)).
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It is likely that Justice Ginsburg’s views in closely decided Supreme Court cases wil be of most interest
to Members of Congress as the Senate considers a nominee to fil her seat, as those cases may il ustrate
how the Court may change in her absence. This Legal Sidebar highlights several areas of law where
Justice Ginsburg—either by authoring or joining a majority opinion or a notable dissent—proved
consequential to the trajectory of Supreme Court jurisprudence. In so doing, this post provides a broad
overview of key legal issues Congress (and, more specifical y the Senate through its advice-and-consent
role) may consider as it reflects on Justice Ginsburg’s jurisprudence and how her eventual successor
might shape the future of the Court.
Justice Ginsburg’s Jurisprudence
During her more than quarter-century on the Court, Justice Ginsburg encountered nearly every major
flashpoint of modern American legal debate—from abortion, to voting rights, to key civil liberties issues.
In a statement issued shortly after Justice Ginsburg’s death, her col eague, Justice Elena Kagan, stated
that Justice Ginsburg worked every day “to ensure that this country’s legal system lives up to its ideals
and extends its rights and protections to those once excluded.”
The following highlights Justice Ginsburg’s approach to several issues that have traditional y resulted in a
closely divided Court:
 Abortion: During and prior to her three decades on the High Court, Justice Ginsburg was
a consistent opponent of measures that she viewed as unduly restricting abortion access.
While the Court’s 1973 decision in Roe v. Wade recognized that the Constitution protects
a woman’s decision to terminate her pregnancy, it rooted this protection in privacy
interests protected by the Fourteenth Amendment’s Due Process Clause. In her various
speeches and writings on abortion, including her dissenting opinion in Gonzales v.
Carhart (2007), Justice Ginsburg contended that the constitutional infirmity of abortion
restrictions instead “center[s] on a woman’s autonomy to determine her life’s course, and
thus to enjoy equal citizenship stature.” In recent years, Justice Ginsburg was part of five-
Justice majorities in June Medical Services LLC v. Russo (2020) and Whole Woman’s
Health v. Hellerstedt (2016), which struck down various state regulations of abortion
providers.
 Administrative Law: In recent years, some Justices have cal ed for the Court to narrow
the degree of judicial deference given to agencies’ interpretations of the statutes and
regulations they administer. Justice Ginsburg was among those members of the Court
who favored maintaining its existing doctrinal approach to these issues. In her majority
opinion in EPA v. EME Homer City Generation, L.P. (2014), where the Court reversed a
decision authored by then-D.C. Circuit Judge Kavanaugh, Justice Ginsburg cited Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., which she cal ed “the
pathmarking decision [that] . . . bears a notable resemblance to the cases before us,” for
the proposition that the Court “accord[s] dispositive effect to an agency’s reasonable
interpretation of ambiguous statutory language.” She also was part of the five-Justice
majority in Kisor v. Wilkie (2019), which affirmed the continued application of the Auer
doctrine, which general y instructs courts to defer to agencies’ reasonable construction of
ambiguous regulatory language. That said, Justice Ginsburg was part of a five-four
majority in several cases that invalidated specific executive branch actions as violating
general administrative law principles. These included Department of Commerce v. New
York (2019), rejecting the Commerce Secretary’s attempt to include a citizenship question
on the 2020 census, and Department of Homeland Security (DHS) v. Regents of the
University of California (2020), ruling that DHS acted improperly when it rescinded the
Deferred Action for Childhood Arrivals initiative.

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 Affirmative Action: The High Court considered several significant cases involving race-
conscious policies during Justice Ginsburg’s tenure. In these cases, Justice Ginsburg
authored or joined opinions that argued that the government has wide latitude to address
historical and systemic discrimination against racial minorities. For example, she
dissented from the Court’s ruling in Adarand Constructors, Inc. v. Peña (1995), which
held that even “benign” race-based classifications by the federal government intended to
help disadvantaged groups are subject to “strict scrutiny.” In several closely divided
cases, Justice Ginsburg joined majorities in upholding race-conscious school admission
policies, such as those at issue in Grutter v. Bollinger (2003) and Fisher v. University of
Texas at Austin (2016), and dissented in another case, Gratz v. Bollinger (2003), where a
bare majority held a different race-conscious col ege admission policy invalid. Justice
Ginsburg was also one of four dissenting Justices in Parents Involved in Community
Schools v. Seattle School District No. 1 (2007), where a fractured Court invalidated two
school districts’ assignment plans, which sought to improve racial diversity by
considering a student’s race as a factor in determining which school the child could
attend.
 Criminal Law & Procedure: Criminal law and procedure is an area where Supreme
Court alignments are not divided neatly between the Court’s more conservative and
liberal wings, and Justice Ginsburg was an important vote in many such cases. In Mont v.
United States (2019), for example, Justice Ginsburg authored an opinion joined by four
members of the Court’s conservative wing, holding that a criminal defendant’s period of
supervised release following incarceration may be tolled if the defendant is later charged
with another crime and placed in pretrial detention. She authored several of the Court’s
opinions in recent decades on criminal sentencing matters (e.g., Oregon v. Ice (2009);
Kimbrough v. United States (2007); Cunningham v. California (2007); Ring v. Arizona
(2002)). And in United States v. Booker (2005), Justice Ginsburg cast deciding votes for
the case’s control ing opinions that held that the federal sentencing guidelines’ mandatory
enhancements were unconstitutional and the remaining guidelines were thereby rendered
“effectively advisory.” On Fourth Amendment matters, Justice Ginsburg frequently
joined opinions constraining the government’s ability to conduct warrantless searches,
including controlling or concurring opinions that recognized technology-assisted
surveil ance as posing unique threats to privacy expectations (e.g., Carpenter v. United
States (2018); United States v. Jones (2012); Kyllo v. United States (2001)). Justice
Ginsburg also joined Court opinions prohibiting the imposition of capital punishment
against juvenile offenders (Roper v. Simmons (2005)) and the cognitively disabled (Atkins
v. Virginia (2002)), as wel as sentences of life imprisonment without parole for juveniles
(Peugh v. United States (2013)). She was also one of three Justices who, in a dissenting
opinion in Glossip v. Gross (2015), argued that the death penalty was incompatible with
the Eight Amendment’s prohibition on cruel and unusual punishment.
 Elections & Voting Rights: Justice Ginsburg also weighed in on issues related to the
integrity of elections and protection of voting rights, frequently in dissent. She dissented
from the Court’s per curiam decision in Bush v. Gore (2000), which found that “the use of
standardless manual recounts” in Florida during the contested 2000 presidential election
violated the Equal Protection Clause. Justice Ginsburg acknowledged that the Court’s
construction of Florida law was “reasonable,” but asserted that the Court should have
deferred to the Florida Supreme Court’s interpretation of its own state’s law and al owed
the recount to proceed. In another landmark case, Citizens United v. Federal Election
Commission (2010), a five-Justice majority held that a statute prohibiting independent
election expenditures by corporations and unions violated the First Amendment’s free

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speech protections. Justice Ginsburg joined Justice Stevens’s opinion dissenting from this
holding, arguing that it “threatens to undermine the integrity of elected institutions across
the Nation.” With regard to voting rights, in Shelby County v. Holder (2013), the Court
struck down a preclearance provision of the Voting Rights Act of 1965 as exceeding
Congress’s authority to enforce the Fourteenth and Fifteenth Amendments. In her dissent,
Justice Ginsburg surmised that “throwing out preclearance when it has worked and is
continuing to work to stop discriminatory changes is like throwing away your umbrella in
a rainstorm because you are not getting wet.” In addition to her dissents, in Buckley v.
American Constitutional Law Foundation (1999) Justice Ginsburg authored a majority
opinion striking down certain Colorado regulations related to bal ot initiatives as
violating the First Amendment because they were “excessively restrictive of political
speech.” More recently in Arizona State Legislature v. Arizona Independent Redistricting
Commission (2015), Justice Ginsburg authored a five-four opinion that held it was
constitutional y permissible for Arizona voters, through a bal ot initiative, to transfer
redistricting authority from the state legislature to an independent commission.
 Environmental Law: Justice Ginsburg authored or joined several consequential opinions
in environmental law cases during her time on the High Court. Two of her major opinions
concerned the justiciability of environmental claims. In Friends of the Earth, Inc. v.
Laidlaw Environmental Services, Inc. (2000), she wrote that constitutional standing
requirements were satisfied in a suit al eging that the defendant’s discharge of pollutants
injured plaintiffs’ “recreational, aesthetic, and economic interests.” And in American
Electric Power Co. v. Connecticut (2011), Justice Ginsburg wrote for a unanimous court
that the Clean Air Act foreclosed any federal common law public nuisance claims that
plaintiffs might otherwise raise against carbon monoxide-emitting power plants. Justice
Ginsburg was also involved in several cases that more closely divided the Court. In EPA
v. EME Homer City Generation, L.P. (2014), Justice Ginsburg authored an opinion
upholding an EPA rule under the Clean Air Act related to air pollution crossing state
lines. In the landmark environmental case Massachusetts v. EPA (2007), Justice Ginsburg
was part of a five-Justice majority ruling that greenhouse gases fit within the Clean Air
Act’s definition of “air pollutant,” and that states could chal enge the EPA’s failure to
regulate those emissions adequately. Justice Ginsburg joined the Court’s more liberal
wing to dissent in Michigan v. EPA (2015), which held that the EPA unreasonably deemed
cost irrelevant with respect to certain regulations of power plants. In the Court’s fractured
decisions concerning “waters of the United States” governed by the Clean Water Act,
Justice Ginsburg was part of a four-Justice dissenting bloc that argued that the term
should be interpreted broadly to permit regulating agencies to address pollution not only
affecting navigable waters, but also wetlands adjacent to those waters’ tributaries
(Rapanos v. United States (2006); Solid Waste Agency of Northern Cook County v. U.S.
Corps of Army Engineers (2001)).
 Freedom of Religion: Justice Ginsburg has, in some cases, expressed concern about
protecting religious freedoms, particularly those of religious minorities. In 1984, as a
judge on the D.C. Circuit, she was joined by her colleague, then-Judge Scalia, in arguing
that the appel ate court should have reconsidered the claim of an Air Force officer who
wanted to wear a yarmulke on duty, cal ing the military’s decision not to accommodate
his religious faith “cal ous.” In her dissenting opinion in the fractured case of American
Legion v. American Humanist Ass’n (2019), she argued that a state violated the
Establishment Clause by displaying a large Latin cross as a war memorial. She rejected
the state’s claims that the cross could be seen as a secular symbol, observing it had never
been “perceived as an appropriate headstone or memorial for Jewish soldiers and others

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who did not adhere to Christianity.” At the same time, Justice Ginsburg has argued
against “religion-based opt-outs” from general y applicable laws. Dissenting from the
Court’s five-four opinion in Burwell v. Hobby Lobby Stores, Inc. (2014), she would have
denied a religious accommodation for a corporation that objected to having to provide
health-insurance coverage for certain methods of contraception—also the subject of
Justice Ginsburg’s last dissent in Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania (2020). She also rejected religious objections to complying with
nondiscrimination policies—a recurring issue before the Supreme Court—in her majority
five-four opinion in Christian Legal Society v. Martinez (2010) and her dissent in
Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).
 National Security: The Court has considered numerous cases implicating national
security matters in recent decades. In these cases, many of which closely split the Court,
Justice Ginsburg aligned with those Justices who were less deferential to judgments of
the political branches, and in particular the executive branch. Recently, in Trump v.
Hawaii (2018), a five-Justice majority afforded broad deference to presidential security
determinations in upholding the Trump Administration’s “Travel Ban” on certain foreign
travelers from Muslim-majority countries. Justice Ginsburg, however, joined a dissent
that argued the action was unconstitutional y motivated by religious animus. Justice
Ginsburg also dissented from Court opinions that effectively foreclosed various lawsuits
related to counterterrorism policies pursued in the aftermath of the September 11, 2001
terrorist attacks (Ziglar v. Abbasi (2017); Clapper v. Amnesty International USA (2013);
Ashcroft v. Iqbal (2009)). With regard to the President’s war powers, Justice Ginsburg
was part of a majority of Justices who questioned the Executive’s ability to detain
indefinitely “enemy combatants” on U.S. soil without review; they also ruled that
military tribunals established by presidential order to try enemy bel igerents were invalid
because they failed to afford baseline statutory protections. Justice Ginsburg also joined
the Court’s opinion in Boumediene v. Bush (2008), which held that the constitutional writ
of habeas corpus extended to foreign nationals held as enemy bel igerents at the
Guantanamo Bay detention facility.
 Powers of Congress: Arguably one of the most notable aspects of Justice Ginsburg’s
jurisprudence was her opposition to the trajectory of the Court’s opinions during the
Rehnquist and Roberts eras that served to limit the reach of congressional power. Justice
Ginsburg joined dissents in two key decisions of the Rehnquist Court that established
parameters on the exercise of Congress’s commerce power: United States v. Lopez (1995)
and United States v. Morrison (2000). In a partial dissent in National Federation of
Independent Business v. Sebelius (2012), moreover, she expounded on her views
regarding the broad scope of Congress’s power to regulate commerce, urging judicial
deference to congressional judgments “in the economic and social welfare realm.” She
likewise dissented in two major decisions that limited Congress’s powers under the
Reconstruction-era amendments, City of Boerne v. Flores (1997) and Shelby County v.
Holder (2013), writing in Shelby County that Congress’s findings regarding the
appropriateness of voting rights legislation were entitled to “substantial deference” and
should prompt “unstinting approbation” by the Court. Justice Ginsburg also joined or
authored dissents to Court opinions that barred congressional directives to state executive
and legislative officials (Murphy v. NCAA (2018); Printz v. United States (1997)) and
limited Congress’s power to subject state governments to monetary damages remedies
(e.g., Seminole Tribe of Florida v. Florida (1996); Alden v. Maine (1999)). On Congress’s
powers to limit the President’s ability to fire subordinates, Justice Ginsburg dissented in
several narrowly divided cases where the Court recognized constitutional limits to

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Congress’s ability to shield certain executive officials from at-wil removal by the
President or a superior officer (e.g., Seila Law LLC v. Consumer Financial Protection
Bureau (2020); Lucia v. Securities & Exchange Commission (2018); Free Enterprise
Fund v. Public Co. Accounting Oversight Board (2010)). A notable exception to Justice
Ginsburg’s deference to Congress involved laws she believed impeded upon the
constitutional rights of individuals. For example, in the immigration field—where
congressional power is substantial—Justice Ginsburg joined the majority opinion in
Zadvydas v. Davis (2001), where a closely divided Court recognized that substantive due
process considerations prevent immigration authorities from indefinitely detaining a
deportable alien. She also joined four other Justices in Sessions v. Dimaya (2018),
concluding that a term in a statutory provision for alien removal was unconstitutional y
vague.
 Second Amendment: Although Justice Ginsburg was not a prominent author of
decisions involving the Second Amendment, she was part of a four-Justice bloc that
dissented from the Court’s ruling in District of Columbia v. Heller (2008), which held
that the Second Amendment protects an individual (as opposed to a collective) right to
bear and keep arms. She also joined the dissenting Justices two years later in McDonald
v. City of Chicago (2010), where the Court held that the Second Amendment applied to
state and local governments through the Fourteenth Amendment. Justice Ginsburg later
joined other Justices in declining opportunities to revisit Heller’s application, including in
the denial of ten certiorari petitions this past term that cal ed for the Court to review (and
possibly invalidate) chal enged state concealed-carry laws, handgun permit requirements,
and so-cal ed “assault weapons” and handgun restrictions.
 Sex & Gender: As noted, three years after joining the Court, Justice Ginsburg authored
the majority opinion in United States v. Virginia (1996), ruling that Virginia Military
Institute violated the Equal Protection Clause by refusing to admit women. Over a decade
later, Justice Ginsburg dissented from the Court’s ruling in Ledbetter v. Goodyear Tire &
Rubber Co. (2007), which rejected Ledbetter’s Title VII employment discrimination
claim. Justice Ginsburg argued that Ledbetter proved she received lower pay because of
her sex, and cal ed on Congress to correct the majority opinion’s “parsimonious reading”
of Title VII. Congress passed the Lil y Ledbetter Fair Pay Act in 2009, seeking to reverse
the majority’s opinion. She was part of five-Justice majorities in United States v. Windsor
(2013) and Obergefell v. Hodges (2015) that struck down federal and state laws barring
recognition of same-sex marriage. And this past term, in Bostock v. Clayton County
(2020), she joined the majority in construing Title VII’s prohibition on sex discrimination
to cover discrimination because of sexual orientation or gender identity.
Nomination & Confirmation Process
As Justice Ginsburg’s predecessor Justice White once noted, “every time a new justice comes to the
Supreme Court, it’s a different court.” Article II of the Constitution gives the President the authority to
appoint judges to the Supreme Court with the Senate’s advice and consent. Prior to the unexpected death
of Justice Antonin Scalia in February 2016—creating a vacancy fil ed by Justice Neil Gorsuch in April
2017—the last such vacancy during a presidential election year occurred in 1968, when Chief Justice Earl
Warren submitted a resignation letter less than six months before the general election. Chief Justice
Warren’s seat was not fil ed until the following year. The last time a Supreme Court vacancy arose in an
election year and the Senate approved a new appointee to the Court in that same year was 1932, when the
seat vacated by the retirement of Justice Oliver Wendel Holmes, Jr. in January of that year was fil ed by
Justice Benjamin Cardozo two months later.

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On September 9, 2020, President Trump released a list of possible Supreme Court nominees, the fourth
such list he has issued since his presidential campaign in 2016. In a statement shortly after Justice
Ginsburg’s passing, Senate Majority Leader, Mitch McConnel , stated that “President Trump’s nominee
wil receive a vote on the floor of the United States Senate.” President Trump has indicated that the
nominee wil likely be a woman.
As with past vacancies on the High Court, CRS wil be preparing products examining the vacancy created
by Justice Ginsburg’s passing and any nominee to fil her seat on the Court. CRS has also published
products reviewing procedural issues caused by vacancies and products related to congressional hearings
on judicial nominees, including the appointment process and the questioning of nominees.

Author Information

Valerie C. Brannon
Caitlain Devereaux Lewis
Legislative Attorney
Section Research Manager

Michael John Garcia

Section Research Manager

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