U.S. Chief Justice John Roberts Jr. U.S. Supreme Court Chief Justice John Roberts Jr. Photo Credit: Diego M. Radzinschi / National Law Journal

In Thursday’s U.S. Supreme Court decision striking down Minnesota’s ban on political apparel in polling places, Chief Justice John Roberts Jr. showed once again he is the justice steering the court through challenges under the First Amendment and making that a crucial part of his legacy.

A rough count of the Roberts Court’s First Amendment rulings reveals that Roberts has written more majority opinions than any of his colleagues, including Justice Anthony Kennedy, perhaps the closest to a First Amendment absolutist on the bench.

Not all of Roberts’ decisions in this area are speech protective, but when they are, he appears to relish the opportunity to offer a robust defense of the principles at stake.

Thursday’s ruling came in the case Minnesota Voters Alliance v. Mansky. A 7-2 majority, led by Roberts, held that Minnesota’s law prohibiting voters from wearing a political badge, political button or anything bearing political insignia inside a polling place on election day violated the First Amendment even though states have more leeway to regulate in nonpublic forums such as polling places.

Although a state may prohibit certain apparel because of the message it conveys so voters can focus on their voting decisions, Roberts wrote, a state must draw a “reasonable” line.

The state, Roberts said, “must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. Here, the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the state has provided in official guidance and representations to this court, cause Minnesota’s restriction to fail even this forgiving test.”

Here are three other takeaways from the decision:

The powerful role of hypotheticals in oral arguments.

The justices are experts at playing devil’s advocate in oral arguments and leaving an audience unsure of the outcome. But sometimes the justices show their hand early in the game. That is exactly what happened during arguments Feb. 28. Call it “Alito Unleashed.”

Justice Samuel Alito Jr., in rapid-fire delivery, peppered the state’s counsel, Assistant Hennepin County Attorney Daniel Rogan, with a series of hypotheticals on the types of apparel that would or would not pass muster under Minnesota’s law. Rogan struggled valiantly to draw distinctions, but clearly left many justices frustrated.

Some of those hypotheticals became ammunition in Roberts’ majority opinion. “A shirt declaring ‘All Lives Matter,’ we are told, could be ‘perceived’ as political,” Roberts wrote. “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.’”

States can draw reasonable lines.

Roberts stressed that a majority of states do have laws regulating displays, including apparel, in polling places, and some of those laws prohibit items in “more lucid terms.” He noted, among others, California’s law prohibiting “the visible display … of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information. And Texas has a law prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.”

But Roberts cautioned: “We do not suggest that such provisions set the outer limit of what a state may proscribe, and do not pass on the constitutionality of laws that are not before us.”

Don’t wait to ask for certification to a state Supreme Court.

Justice Sonia Sotomayor, in a dissent joined by Justice Stephen Breyer, objected to striking down the Minnesota ban on its face without first giving that state’s Supreme Court “a reasonable opportunity” to interpret the ban.

Doing that, she wrote, “likely would obviate the hypothetical line-drawing problems that form the basis of the court’s decision today.” The justices’ ruling reversed a decision by the U.S. Court of Appeals for the Eighth Circuit.

Roberts said the certification request came “very late in the day.”

This litigation, he wrote, “had been ongoing in the federal courts for over seven years before the state made its certification request in its merits brief before this court. And the state has not offered sufficient reason to believe that certification would obviate the need to address the constitutional question.” Sotomayor rejoined: “Respondents’ delay in asking for certification does nothing to alter this court’s responsibility as a matter of state-federal comity to give due deference to the state courts in interpreting their own laws.”