SCOTUS Issues Two New Opinions


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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16 Responses

  1. Avatar LTL FTC says:

    I thought deference to international law was going to be the backdoor gambit by which we get Sharia implemented here in America. I guess we’ll have to deal with unescorted, uncovered women walking around in public like a buncha floozies until we can find something else. Maybe Black Panthers at polling places?Report

  2. Avatar Aaron David says:

    JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

    MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.

    JUSTICE ALITO: How about a shirt that says “Parkland Strong”?

    MR. ROGAN: No, that would — that would be — that would be allowed. I think -­ I think, Your Honor -­

    JUSTICE ALITO: Even though gun control would very likely be an issue?

    MR. ROGAN: To the extent -­

    JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

    MR. ROGAN: Your Honor, the — the -­ the line that we’re drawing is one that is -­ is related to electoral choices in a -­

    JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?

    MR. ROGAN: The — the Parkland?


    MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -­

    JUSTICE ALITO: Okay. How about an NRA shirt?

    MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -­

    JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

    MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be -­

    JUSTICE ALITO: How about the First Amendment?


    MR. ROGAN: No, Your Honor, I don’t -­ I don’t think the First Amendment. And, Your Honor, I -­

    CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?

    MR. ROGAN: It would be allowed.


    MR. ROGAN: It would be. And — and I think the — I understand the — the idea, and I’ve — I’ve — there are obviously a lot of examples that — that have been bandied about here –

    JUSTICE ALITO: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?

    MR. ROGAN: No, Your Honor, I don’t think that that would be under — under our statute. And I think -­

    JUSTICE ALITO: How about “All Lives Matter”?

    MR. ROGAN: That could be, Your Honor, that could be — that could be perceived as political. And I — I think obviously, Your Honor, there — there are some hard calls and

    there are always going to be hard calls. And that — that doesn’t mean that the line that we’ve drawn is — is unconstitutional or even unreasonable.

    JUSTICE ALITO: How about an “I Miss Bill” shirt?


    MR. ROGAN: I’m sorry, Your Honor? I didn’t –

    JUSTICE ALITO: “I Miss Bill,” or to make it bipartisan, a “Reagan/Bush ’84” shirt?

    MR. ROGAN: Yes, Your Honor, I believe that that’s political.

    Mini-soda did itself no favors here.Report

    • Avatar Jaybird says:

      I can’t believe how much he telegraphed there.

      “Would a verse from the New Testament of the Bible be okay?”
      “Well, I think that a Bible verse would be fine…”
      “Would a verse from the Koran?”
      “No, a verse from the Koran would be risible.”
      “What about a verse from the Hebrew Scriptures?”
      “Well, depending on the verse allowances…”
      “Something from the Book of Mormon?”
      “We’d want to avoid offending people of different faiths…”

      Dude. You’re just telegraphing what game you’re playing there.Report

      • Avatar pillsy says:

        It’s amazing how many people cut the legs out from under themselves by refusing to bite bullets in arguments. And these weren’t even ordinary lead bullets. They were like marshmallow bullets.Report

        • Avatar Jaybird says:

          He’s not even merely hanging with their bros at a poker game. This is SCotUS. Did he not imagine how this would play?Report

          • Avatar Burt Likko says:

            No doubt he did. No doubt he didn’t have much to do other than what he did.Report

            • Avatar pillsy says:

              Do you mind elaborating a bit for the non-lawyers? ‘Cause it seems to me he could have avoided the trap.Report

              • Avatar Burt Likko says:

                He could have, if he’d aimed for the Sotomayor solution: argue for certification of the matter back to the Minnesota Supreme Court. If that had been where he wanted to go, he could have answered every one of those questions “I don’t know, because we don’t have guidance from the state supreme court interpreting the state’s own laws.”

                Instead, he argued for the statute on its face to prevail, and therefore had to grapple with actual applications. And for that, he no doubt had to confer with the top enforcement official and got back the interpretative hair-splitting he did, and had to apply those ideas as best he could under rapid-fire pressure from Alito and Roberts. [Insert GIF of Homer Simpson in courtroom, tugging nervously at own collar here.]Report

  3. Avatar Saul Degraw says:

    IIRC unanimous or near unanimous decisions are not rare on “not exciting” (my words) matters like the first case and a lot of cases involving civil procedure*. The second case seems like a clear cut application of existing law and not a judicial show stopper because election polling places were called nonpublic forums and the Supremes gave states a wide variety of activities that they could prohibit.

    *See BMS v. Superior Court and other cases involving jurisdiction that I hate explaining to my clients. BMS is generally bad for my side of the law (plaintiff-side civil litigation) but it was an 8-1 decision.Report

    • Avatar Burt Likko says:

      Unanimous decisions are the rule, not the exception.

      According to SCOTUSBlog’s count of votes, the lowest frequency of congruent votes exists between Justice Alito and Sotomayor, who “only” vote together 53.66% of the time.

      The sharpest ideological opponents on the Court vote the same way more than half the time.Report

      • Avatar Em Carpenter says:

        I guess I should have specified rare in comparison to recent “big” cases. But then again Cakeshop was seen as “big” (I disagree) and was still 7-2. Eh. Mea culpa.Report

  4. Avatar Saul Degraw says:

    The reason I hate describing jurisdiction to my clients is that it is sometimes necessary but specific personal jurisdiction is only interesting if you are a lawyer.Report

    • Avatar LeeEsq says:

      It can also be confusing to the clients and seem kind of silly to them. My clients never seemed to grasp the concept of venue. Any lawyer who deals with Chinese immigrants a lot will get that.Report

  5. Avatar Kolohe says:

    As someone who works as an election official, I’m glad our state doesn’t have T-shirt laws so I don’t have to enforce them.

    (Though in Tuesday’s election I can recall only one vaguely political shirt. Lots of Caps stuff though)Report