With 17 #SCOTUS decisions in argued cases left, a brief statistical note on the impact of Justice Barrett versus Justice Ginsburg:
So far, there hasn't been a *single* argued case in which Justice Barrett has been part of a 5-4 majority (where the difference could've mattered).
So far, there hasn't been a *single* argued case in which Justice Barrett has been part of a 5-4 majority (where the difference could've mattered).
On the "shadow docket," in contrast, there've been at least three rulings where she was in a (publicly) 5-4 majority; one where she was part of a 6-3 majority to summarily reverse (which usually needs six votes); & several where she *might* have been the fifth vote (e.g., Smith).
Two of the three 5-4 rulings (Roman Catholic Diocese & Tandon) are easily among the Court's most significant decisions of the Term thus far.
At least to this point, then, Justice Barrett's impact has been far more publicly visible on the shadow docket than on the merits docket.
At least to this point, then, Justice Barrett's impact has been far more publicly visible on the shadow docket than on the merits docket.
Obviously, that could change as the remaining rulings are handed down. But at least for now, this distinction underscores both the growing significance of the shadow docket and the risks we run by focusing assessments of #SCOTUS's work solely on its rulings in argued cases.
/end
/end
One addendum: In Borden, the Court was 4-1-4 with Justice Barrett in dissent. It’s possible (indeed, likely) that Justice Ginsburg would’ve been in the majority — which wouldn’t have changed the result, but *would* have turned Justice Kagan’s plurality opinion into a majority:
https://twitter.com/nikkidadlani/status/1405303524884242433
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