Supreme Court slow roasts Minnesota lawyer in T-shirt, voting fight

Arguing a case before the United States Supreme Court is a career pinnacle for many lawyers. But you have to know that when you stand in front of the nine justices, you’re going to get a little dinged up.

That’s especially true when the big issues swirl around voting law and novelty T-shirts.

So, maybe a little sympathy is in order for Daniel Rogan, the senior attorney in the Hennepin County Attorney’s Office, who stood before the justices Wednesday to defend Minnesota’s law barring voters from wearing apparel or buttons that bear a “political” message when they show up to vote.

In 2010, several groups sued after learning that some county election officials would not allow voters to wear buttons that read, “Please I.D. me,” a reference to legislation that would have required voters to show identification at the polls. The debate boiled down to: Are such buttons, or T-shirts that say, “Don’t tread on me,” inherently political?

The case found its way to Washington Wednesday, where there were many incredulous questions asked about T-shirts.

Here’s a snippet from the transcript where the justices take Rogan out for a few laps on the question of acceptable vs. unacceptable T-shirts:

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?

I’m not a great Supreme Court watcher, but when you see “(laughter)” in the transcript during your arguments, it probably is not a good thing.

Reporting on the oral arguments Wednesday, a Reuters correspondent wrote that from the justices’ questions, it was unclear how they will eventually rule.

  • chlost

    Oh, boy. As the attorney arguing this matter, he didn’t prepare for these types of questions? I find it hard to believe that the questions as to what types of speech would be acceptable wouldn’t be expected. Any attorney preparing for an argument at the Supreme Court meticulously prepares their case, is ready to answer any question posed, and should be able to handle those questions with ease. I find this disturbing. And as you noted “(laughter)” from Supreme Court Justices in response to the replies of counsel is not a good sign for that attorney’s argument.

    • I’m quite sure he prepared for the questions. The transcript, at least, (and I think the audio will confirm) that the justices don’t give a person a chance to make an argument because they’re interrupting the answer to ask another question. Except for Justice Thomas, of course.

      Boy I wish SCOTUS would come into the world and allow TV coverage of their arguments.

      • Nato Coles

        I would watch this, and watch it often.

      • bri-bri

        They should. (But if they did, I assume we’d lose Nina Totenberg’s readings of SC transcripts. Tragic!)

    • JamieHX

      Even a well-prepared attorney would be in an impossible situation with all those interruptions.

      • ms. mischief

        When you’re offering yourself as a sample of a reasonable person and are prepared to define the Second Amendment as political and the First Amendment as non-political, your problem is not the interruptions. Your problem is that you are demonstrating beyond a doubt that by “political” you mean — “shut up the riffraff and let me speak.”

    • BJ

      Here’s the thing with SCOTUS – the members are all really smart. Like some of the greatest legal minds. They spend all day every day at work on only one document, and it’s a short document with a long(ish) history. I don’t care what attorney prepares for they have discussed it 100 times more than they could possibly have, and there are a bunch of them. You are going to get hit with what, after it is said, is a very simple basic question. And then not be given a chance to actually answer it, because honestly its being asked for the other SCOTUS members benefit and not for the arguing attorney.

  • LieutenantLefse

    I fear that the people pushing this suit are probably legally in the right, but haven’t really thought through the implications of forcing the issue. Polling places are going to suck now.

    • Jeff R.

      I’m in Washington State – vote by mail is the way to go – and you can wear any t-shirt that you want.

    • BJ

      In most of the country most people don’t vote so it will not bother the ‘average’ person.

    • ms. mischief

      The idea that a T-shirt with the Second Amendment on it — as opposed to one with the First — will make your polling place horrible is ludicrous. The problem there is you.

  • Might I direct y’all’s attention to the @lolscotus tweetbot that does nothing but tweets when [laughter] shows up in SCOTUS transcripts. You’ll note laughter happens a lot in many cases (4 times in this one, including one during Breemer’s grilling) and as Bob implies in his comment below, it’s not necessarily an indicator that anyone’s unprepared or tanking their argument.