Jurisprudence

The Sam Alito Treatment

How the conservative justice’s searingly funny questions doomed Minnesota’s ban on political apparel at the polls.

Supreme Court Associate Justice Samuel Alito speaks during the Georgetown University Law Center’s third annual Dean’s Lecture to the Graduating Class in the Hart Auditorium in McDonough Hall on Feb. 23, 2016, in Washington.
Supreme Court Associate Justice Samuel Alito speaks during the Georgetown University Law Center’s third annual Dean’s Lecture to the Graduating Class in the Hart Auditorium in McDonough Hall on Feb. 23, 2016, in Washington.
Chip Somodevilla/Getty Images

On Thursday, the Supreme Court struck down a Minnesota law that barred voters from wearing “political insignia” inside a polling place on Election Day. Writing for a 7–2 court in Minnesota Voters Alliance v. Mansky, Chief Justice John Roberts easily concluded that Minnesota’s broad suppression of political speech ran afoul of the First Amendment. The result was predictable from a court that consistently prioritizes free speech over restrictions on electioneering, and more or less inevitable following oral arguments in February. Indeed, Roberts’ opinion indicates that Justice Samuel Alito’s brutal and hilarious line of questioning at arguments may have single-handedly doomed the Minnesota statute.

Mansky initially appeared to present a thorny question of First Amendment law. As a general rule, the government may not suppress expression on the basis of its content. But the courts make an exception in “nonpublic forums”—spaces that “are not by tradition or designation a forum for public communication.” In these areas, the government may impose content-based restrictions on speech so long as those limitations are “reasonable” and viewpoint-neutral. The Supreme Court has held that polling places are nonpublic forums. So Minnesota’s dress code for voting is constitutional so long as it amounts to a “reasonable” effort to protect the right to vote.

But is the Minnesota law actually reasonable? On its face, the statute is remarkably broad, prohibiting voters from wearing any “political badge, political button, or other political insignia … at or about the polling place.” What, exactly, qualifies as political? Daniel Rogan of the Hennepin County Attorney’s Office, who defended Minnesota’s rule at the Supreme Court, could not give the justices a clear answer. His evasive responses prompted one of the most memorable colloquies in recent memory as a punchy Alito tossed out increasingly hilarious hypotheticals about rainbows, gun control, and Colin Kaepernick jerseys.

In his Mansky opinion, Roberts quoted extensively from this exchange to illustrate that Minnesota’s law was not, in fact, reasonable. The statute, he wrote, “poses riddles that even the State’s top lawyers struggle to solve.” He continued:

A shirt declaring “All Lives Matter,” we are told, could be “perceived” as political. How about a shirt bearing the name of the National Rifle Association? Definitely out. That said, a shirt displaying a rainbow flag could be worn “unless there was an issue on the ballot” that “related somehow … to gay rights.” A shirt simply displaying the text of the Second Amendment? Prohibited. But a shirt with the text of the First Amendment? “It would be allowed.”

This arbitrary line drawing, Roberts explained, demonstrates the genuine threat that Minnesota’s rule poses to free speech. An “indeterminate prohibition” on expression at the polls gives election judges far too much discretion “to prohibit the expression of political views” on the basis of their viewpoints. These judges “must be guided by objective, workable standards”—or else a judge’s “own politics may shape his views on what counts as ‘political.’ ”

This isn’t the first time Alito has deployed humorous common sense to undermine pro-censorship arguments . In 2015, the court issued a deeply unfortunate 5–4 decision allowing Texas to reject specialty license plate designs on the basis of their viewpoints. The court reasoned that custom license plates constitute “government speech” and that the state may censor them because they “convey to the public that the state has endorsed [their] message.” This claim, Alito explained in a rip-roaring dissent, is simply absurd. “Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by,” he wrote. Would you “really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?”

If a car with a plate that says “Rather Be Golfing” passed by at 8:30 a.m. on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games—Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR—24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?

Progressives are frequently and justifiably critical of Alito’s sometimes results-oriented conservative jurisprudence. But when he puts partisan ideology to the side, his questions and opinions can be bracingly candid, delightfully cranky, and remarkably sensible. Alito’s interrogation during the Mansky arguments all but sealed the fate of a statute that deserved to die. And thanks in part to his searing wit, Minnesota voters can now wear their Kaepernick jerseys to the polls in peace.