Unexceptional

This AP story notes that in Carhart [previous coverage], in a "5-4 decision[], the court for the first time upheld a nationwide ban on an abortion procedure. The result almost certainly would have been different had Alito's predecessor, Justice Sandra Day O'Connor, still been on the court." This week, I've seen various editorials critical of the Ledbetter decision [previous coverage] make a similar (if completely unsupported) suggestion that had Justice O'Connor still been on the court, that case would have come out the other way too.

I suppose that it's almost certain that Carhart would have come out the other way with Justice O'Connor rather than Justice Alito, and although I'm somewhat skeptical (my suspicion is that most of the folks asserting it to be so are operating from the premise that a female Justice would naturally have ruled for Ledbetter, rather than careful parsing of O'Connor's Title VII jurisprudence), I'm willing to stipulate for purposes of this post that the same is true of Ledbetter. My question is this: In the term after President Clinton replaced Justice White with Justice Ginsburg, October Term 1993, was the media full of reports fretting that the result in such-and-such a case "almost certainly would have been different had Ginsburg's predecessor, Justice Byron White, still been on the court"?

There are certainly cases from that term where one could imagine the replacement of White with Ginsburg changing the outcome, even assuming arguendo that votes never change in response to colleagues' arguments (itself a flawed premise; see, e.g., Greenburg, SUPREME CONFLICT, 115-37 (2007)). To pick a few low-hanging fruit: Both Ratzlaf v. United States, 510 U.S. 135 (1993) and Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994), were decided 5-4 with Justice Ginsburg in the five; in Liteky v. United States, 510 U.S. 540 (1994), all nine justices agreed with the result, but split 5-4 on the reasoning, with Justice Ginsburg in the five. C & A Carbone v. Clarkstown, 511 U.S. 383 (1994) was decided 6-3, with Justice Ginsburg among the six, but Justice O'Connor concurred only in the judgement; with Justice White rather than Justice Ginsburg, although the case likely would have come out the same way, it might have had to have been decided by plurality.