In news that probably shouldn’t have been shocking given her health but surprised many nonetheless, Justice Ruth Bader Ginsburg passed away yesterday from complications from pancreatic cancer. Lots of heartfelt eulogies made their way across the internet in the minutes and hours that followed Justice Ginsburg’s death. Within hours of the news of Ginsburg’s passing, news cycles focused on the possibility that President Trump will try to fill her seat prior to the November election. Trump also made mention of this point. If this happens, we could see the Court’s greatest shift to the right in modern history. This post sheds light on some of Justice Ginsburg’s work on the Court as well as what to expect now that she has passed.
Ginsburg kept herself busy on the Court, even by Supreme Court Justice standards. Since her confirmation in 1993 she authored the most majority opinions of the justices at 213.
She wrote far fewer dissents over this period than Justices Thomas, Scalia, Stevens, and Breyer and authored fewer concurrences than these justices as well.
Ginsburg was also the quickest authoring justice when looking at the average time between oral arguments and signed decisions. The graph below looks at average time by justice from the 1993 through 2018 terms. The 2019 term was excluded due to the nuance of remote arguments in May.
Ginsburg still took the shortest time from argument to decision in a case last term with 36 days in Shular v. United States.
Ginsburg was prolific in her opinions authoring the majorities in cases such as United States v. Virginia, Daimler AG v. Bauman, and Ring v. Arizona. The following graph charts Ginsburg’s top cited cases on Westlaw. U.S. v. Virginia was not on the top cited list but was included as a reference point given the case’s notoriety.
Her most cited decision came in Porter v. Nussle which is a statutory interpretation decision looking at remedies under the Prison Litigation Reform Act of 1995.
While Ginsburg never reached frequencies in the majority like Chief Justice Roberts’ frequency last term at 97%, as a consistent member of the liberal minority on the Court, Ginsburg’s percentage generally hovered around 80% and ranged from 70% in 2011 to 88% in 2015. The graph below shows the percentages for the majority frequencies on top and the number of votes in the majority and in dissent below.
Now that Ginsburg is no longer on the Court many question if Trump will get another pick to the Court confirmed by the November election. Although not many justices have died in office recently and so there are not many relevant data points, history suggests that this is possible. The following graph shows the time from nomination to confirmation for the ten justice who died while still in office most recently.
Note that Scalia and Rehnquist were the only two justices to pass in the 2000’s and the last justice to pass in office before Rehnquist did so prior to 1960. Notice that while not recent nominations, several of these justices mentioned above were confirmed within a month of nomination.
Still, the proximity to the election creates a different situation than any of the above instance. Since the Senate is majority Republican and Mitch McConnell is pushing for a nomination and vote as soon as possible, we are sure to see a showdown during the rest of the path to the election. Might we still see a nomination for Judge Amy Coney Barrett as I speculated over a year ago when I wrote about what might happen if Ginsburg were to depart office under Trump? We will likely find out over the next several weeks.
On Twitter: @AdamSFeldman