In 2016, Amy Coney Barrett agreed with Republicans that they could hold a Supreme Court seat open vacated February 13 of an election year. She “distinguished” the Anthony Kennedy nomination of election year 1988 because that vacancy opened in 1987. She then went on to talk about ideology:
Kennedy was a moderate Republican and he replaced a moderate Republican, Powell. We’re talking about Justice Scalia, you know, the staunchest conservative on the Court, and we’re talking about him being replaced by someone who could dramatically flip the, uh, balance of power in the Court. It’s not a lateral move.
In 2020, Donald Trump nominated Barrett to be our next Supreme Court Justice, replacing Ruth Bader Ginsburg. Ginsburg’s seat was vacated on September 18 of an election year — much closer to the election. Also, views of Ginsburg are “dramatically” different than views of Barrett. Reversing her views from 2016, Amy Coney Barrett accepted the nomination.
Replacing second “most liberal” Ginsburg with staunch conservative Barrett will have a significant effect on Supreme Court rulings and upon life in America. Right now, the Court is 5-4 conservative, leaving room for any single Republican appointee to flip the result to the liberals. All five conservatives have flipped, some more than others. A sixth conservative would stop most of these flips.
Here are the cases. First, a summary of cases, then a detailed list of all cases in chronological order.
SUMMARY OF CASES WITH GINSBURG’S DECIDING VOTE
Ruth Bader Ginsburg cast a deciding 5-4 vote in 20 cases in the last three Supreme Court term years since Neil Gorsuch was seated. In 16 cases, exactly one Republican flipped. Cases like these 16 would almost certainly come out the other way by swapping Ginsburg with Barrett:
- preventing deportation for vaguely “violent” crimes (1),
- protecting consumer data from police search (3),
- restoring asylum application rights (5).
- blocking death penalty of incompetent man (6),
- letting an anti-trust case against Apple iPhones go forward (7),
- protecting Native American rights and treaties twice (8 and 19),
- blocking a corporate defendant from choosing a preferred court (9),
- striking vague laws that failed to define levels of violence twice (1 and 13),
- stopping judges from imposing long sentences without proper jury trial (14),
- removing citizenship question from the Census (15),
- upholding emergency COVID-19 restrictions upon church attendance twice (16 and 20),
- saving the Deferred Action for Childhood Arrivals program (DACA) (17), and
- striking an abortion restriction as “undue burden” (18) In the abortion case, four Republican appointees would have overruled a three year old recent precedent, suggesting that they could overrule any of these cases quickly.
The last of these 16 cases with one Republican flip involves restoring the “nondelegation doctrine,” an old rule that would make it harder for government to regulate in all areas (12). But it appears the Court already has five votes to do this in the next case now.
The other four cases are odd mixes:
- The water rights case (4) and the case blocking long sentences for violations of supervised release (10) would likely go the other way.
- The case concerning the power of the legislature to sue for gerrymandering (11) could have gone either way.
- The case permitting states to charge sales tax across state lines (2) likely would have come out the same.
LIST OF ALL CASES WITH GINSBURG’S DECIDING VOTE
Here are all 20 cases where Justice Ruth Bader Ginsburg cast a deciding vote in a 5-4 configuration in the last three terms in chronological order:
1. DEPORTATION LAW STRUCK FOR VAGUENESS
James Dimaya was convicted of burglaries in California. The federal government ordered him deported under immigration law. A 5-4 Supreme Court found immigration law “unconstitutionally vague” for violating “due process” in its definition of “crimes of violence.” The Court analogized the situation to a recent case where an 8-1 majority threw out a lengthy mandatory minimum prison sentence using similar language, “violent felony.” Both laws contained residual clauses that looked at the “ordinary case” of what constitutes a substantial risk of harm rather than the actual risk in the incident.
April 17, 2018. Sessions v. Dimaya. (Gorsuch flip.)
2. STATES MAY APPLY SALES TAX TO INTERSTATE TRANSACTIONS.
This case is an oddity, reminding us that no two Justices are exactly alike. Ginsburg jumps on with four Republican appointees to overturn a long-standing 8-1 precedent blocking states from collecting sales taxes in interstate sales. From now on, states may charge sales tax on internet transactions. John Roberts, Jr., bounces to the dissent with three Democrats, thus making the case 5-4.
June 21, 2018. South Dakota v. Wayfair. (Ginsburg and Roberts flips.)
3. CELL PHONE LOCATION DATA PROTECTED FROM POLICE SEARCH
The 5-4 Supreme Court held that collecting cell phone location data from a third party without a warrant is an unconstitutional search. The “third party doctrine” says that the police can collect such data unless the person has a “reasonable expectation of privacy.” This opinion reduced government power to take third party data.
Neil Gorsuch issued a famous opinion where he questioned the entire third party doctrine, seemingly agreeing with the majority that data collection was unconstitutional. But Gorsuch dissented in the outcome because his arguments were not made in the case. Given that he wrote by himself, it seems unlikely his arguments would gain traction with the Court any time soon.
June 22, 2018. Carpenter v. United States. (Roberts flip.)
4. LOOK DEEPER AT WATER RIGHTS CASES BEFORE DISMISSAL
In a case where a Special Master denied a claim by Florida that Georgia was taking too much water upstream causing oyster fishery collapse and other problems, a 5-4 Supreme Court reinstated the claim because the Special Master “applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree.” Florida only needed show an “approximation” for to continue the case.
June 27, 2018. Florida v. Georgia. (Kennedy and Kagan flips.)
5. TRUMP CANNOT DENY ASYLUM PROCESS TO MIGRANTS
Donald Trump issued a proclamation denying asylum to all migrants entering illegally. A lower court determined the proclamation violated immigration law. After complaining about an “Obama judge” ruling against him, Trump appealed to the Supreme Court, which upheld the ruling.
December 21, 2018. Trump v. East Bay Sanctuary Covenant. (Roberts flip.)
6. NO DEATH PENALTY FOR KILLER WITH DEMENTIA
A 5-3 Supreme Court stopped an execution of a man who killed a police officer 35 years earlier because the man suffered strokes that left him severely disabled both mentally and physically. He could not remember the crime. The case was sent back for further review. The man died shortly thereafter. The dissent complained that the question of dementia was not properly pleaded.
February 27, 2019. Madison v. Alabama. 5-3. (Roberts flip.)
7. APPLE NOT IMMUNE FROM iPHONE APP MONOPOLY LAWSUIT
A 5-4 Supreme Court permitted a monopoly lawsuit against Apple to go forward. Apple controlled the market for independently-produced applications (apps), selling those apps in its store and taking 30 percent profit on sales. Users were considered “direct purchasers” from Apple and therefore entitled to sue the company for antitrust violations.
May 13, 2019. Apple v. Pepper. (Kavanaugh flip.)
8. STATES CANNOT CHARGE NATIVES WITH HUNTING CRIMES UNDER TREATY
A 5-4 Supreme Court overruled very old precedent to reinstate a treaty permitting Natives to hunt on unoccupied lands regardless of season without risk of prosecution.
May 20, 2019. Herrera v. Wyoming. (Gorsuch flip.)
9. CONSUMERS CAN’T BE DRAGGED THROUGH DIFFERENT COURTS
Citibank sued Jackson for a debt in state court. Jackson filed a class counterclaim against Citibank and brought in Home Depot for deceptive trade practices. Citibank dropped out of the case. Home Depot requested removal to federal court. The 2005 Class Action Fairness Act was passed to prevent people from choosing a favorable forum for their cases. A 5-4 Supreme Court said the Act does not permit this court transfer because the term “defendant” in the law does not apply to those brought into a case by another defendant in a counterclaim, so Home Depot must deal with the case in the state court. This opinion benefits consumers, who cannot be dragged to court by one company then dragged to another court by another company in the case.
May 28, 2019. Home Depot v. Jackson. (Thomas flip.)
10. SUPERVISED RELEASE TERM EXTENDED DUE TO DETENTION
A federal supervised release term is extended when a person is in state custody for conviction, including pretrial detention later added to the state sentence.
This is an odd configuration that would likely be a wash in the seat change as Ginsburg joined Republican appointees here except Neil Gorsuch.
June 3, 2019. Mont v. United States. (Ginsburg and Gorsuch flips.)
11. STATE HOUSE CANNOT SUE OVER GERRYMANDERING
Voters sued Virginia for an illegal racial gerrymander where each district was designed to include about 55 percent African-American residents. During the case, the Virginia House of Delegates, “a single chamber of a bicameral legislature” controlled by Republicans, intervened in the case to defend the gerrymandering. After much litigation, an appeals court struck down the gerrymander. The state Attorney General decided not to continue, so the Virginia House appealed alone.
The 5-4 Supreme Court determined that a single body of the state legislature could not continue the lawsuit for lack of standing. The Virginia House of Delegates was neither authorized to represent the state nor suffered an injury itself.
June 17, 2019. Virginia House of Delegates v. Bethune-Hill. (Mixed flips: Thomas and Gorsuch, Breyer.)
12. CONGRESSIONAL POWER TO DELEGATE RULES UPHELD FOR NOW
Under “Megan’s Law,” Congress spelled out details of sex offender registration requirements for those convicted after the law passed, but left the Attorney General to write rules within an acceptable range for those convicted before the law was passed. Herman Gundy was convicted before the act passed, then prosecuted under the rules of the Attorney General. Four Democratic appointees upheld rules of the Attorney General. But these are small facts …
Republicans want something much bigger. They want to restore and expand the “nondelegation doctrine,” a relic of early New Deal days when the Court tried to stop government from acting against the Great Depression.
Neil Gorsuch dissented with John Roberts, Jr., and Clarence Thomas. Gorsuch proposed a new test to restore the doctrine: Legislation must be “sufficiently definite and precise” for the Court to determine “whether Congress’s guidance has been followed.” Such a test would force Congress to deal with highly detailed, specialized, changing science and technology on a regular basis rather than providing agency experts room to sort things out. Or else — where rules are not precise enough, the Court would overturn regulations by delegating decision-making power to itself. Gorsuch showed his anti-government ideological hand by complaining that New Deal-era government grew “explosively.”
Samuel Alito wrote separately to concur with the majority insofar as they were correct based on current Court precedent, but invited a direct challenge to change the basic nondelegation rule.
Brett Kavanaugh did not participate in this case, but he has since suggested he wants nondelegation back too, so the Court likely has five Justices to make this change even without Amy Coney Barrett.
June 20, 2019. Gundy v. United States. 5-3. (Alito flip.)
13. MANDATORY MINIMUM SENTENCE STRUCK FOR VAGUENESS
For the second time on this list (see #1), the same 5-4 configuration of Justices struck down a law for vagueness because it looked at the “ordinary case” of risk of harm rather than the specific facts before the court. This time the charge involved illegal carrying of a firearm.
June 24, 2019. United States v. Davis. (Gorsuch flip.)
14. MANDATORY SENTENCE FOR VIOLATION OF SUPERVISED RELEASE UNCONSTITUTIONAL
Andre Haymond was convicted of possession of child pornography, sentenced to 28 months in prison, then to “supervised release.” A search of his cell phone apparently found more porn, violating supervised release. The judge reluctantly sentenced him to five more years in prison under a mandatory sentencing requirement for sex crimes in the 2003 PROTECT Act.
A 5-4 Supreme Court found such sentencing unconstitutional because the mandatory minimum was more like a new sentence than a violation of supervised release and there was no jury trial nor reasonable doubt standard.
June 26, 2019. United States v. Haymond. (Gorsuch flip.)
15. CITIZENSHIP QUESTION REMOVED FROM CENSUS
Donald Trump’s Commerce Secretary Wilbur Ross came into office with the idea that he would add a question to the Census asking about citizenship status. The question discouraged turnout of millions of people, affecting election redistricting and federal funding to states. Without proper consideration as required under the Administrative Procedures Act (APA), the question was added. Ross later defended the question as a way to enforce the Voting Rights Act (VRA).
Five Justices of the Supreme Court agreed that the question was added without proper consideration, finding the VRA justification to be a “pretext” hiding other reasons.
June 27, 2019. Department of Commerce v. New York. (Roberts flip.)
16. COVID-19 RESTRICTIONS ON CHURCHES UPHELD
A 5-4 Supreme Court summarily upheld a temporary court order permitting California to restrict church attendance during the 2020 pandemic. Concurring Justice John Roberts, Jr., explained that the court should not be “second guessing” the emergency while “facts are changing.” Also, “Similar or more severe restrictions apply to comparable secular gatherings” that are not religious.
May 29, 2020. South Bay United Pentecostal Church v. Newsom. (Roberts flip.)
17. DACA PROGRAM UPHELD AGAINST SHUT DOWN ATTEMPT
The Donald Trump administration violated the Administrative Procedures Act (APA) to end the Deferred Action for Childhood Arrivals (DACA) program for failing to “provide a reasoned explanation for its action” and other things. This technical ruling essentially tells the administration to try again but this time follow legal process.
June 18, 2020. Department of Homeland Security v. Regents of University of California. (Roberts flip.)
18. ABORTION RIGHT UPHELD AGAINST ADMITTING PRIVILEGES
In 2017, a 5-4 Supreme Court struck down a Texas law requiring doctors at abortion clinics to have admitting privileges to nearby hospitals for causing “undue burden” on abortion rights because the rule forces clinics to close. Despite that ruling, Louisiana passed a near-identical law to try again, as swing voter Anthony Kennedy who ruled with the majority was replaced by Brett Kavanaugh.
In this 4-1-4 case, Kavanaugh delivered on reversing the ruling, but John Roberts, Jr., speaking for himself upheld it for the sake of precedent.
June 29, 2020. June Medical Services v. Russo. (Roberts flip.)
19. STATE CANNOT CHARGE TRIBAL MEMBERS WITH CRIMES ON TRIBAL LANDS
A 5-4 Supreme Court upheld an 1866 treaty, finding Native lands under jurisdiction of the tribe and the federal government, but not the state, unless and until Congress decides otherwise.
July 9, 2020. McGirt v. Oklahoma. See also Sharp v. Murphy. (Gorsuch flip.)
20. COVID-19 RESTRICTIONS ON CHURCH ATTENDEES UPHELD AGAIN
A 5-4 Supreme Court upheld a temporary court order permitting Nevada to limit church attendance to 50 people without an opinion, presumably to avoid micromanaging state emergency health measures. Four dissenting Justices noted that churches were restricted to 50 people whereas casinos and gyms were restricted to 50 percent, which exceeds 50 people. Such treatment violated religious freedom.
July 24, 2020. Cavary Chapel Dayton County v. Sisolak. (Roberts flip.)
20 CASES DECIDED with a 5-4 or 5-3 vote by Ruth Bader Ginsburg in her last three terms on the Supreme Court.
As the 2020 Supreme Court term began, the Court was short one Justice. Here is a case that would likely have come out the other way if Amy Coney Barrett filled that seat:
21. THREE DAYS ALLOWED FOR MAILING BALLOTS
The state supreme court determined that ballots received up to three days after the election must be included in the 2020 election count unless information can be shown to indicate ballots were mailed late. Republicans appealed.
A 4-4 Supreme Court order upheld the state decision without comment.
October 19, 2020. Republican Party of Pennsylvania v. Boockvar. (Roberts flip.)