A History Lesson from Clarence Thomas

Damon W. Root | October 10, 2011

Justice Clarence Thomas has not asked a question during Supreme Court oral arguments in over five years. At The Huffington Post, Mike Sacks looks at one of the cases where Thomas did have something to say from the bench, Virginia v. Black (2002), which considered the constitutionality of Virginia’s ban on cross burning. As Sacks observes, while the rest of the justices were focused on the Court’s First Amendment precedents, Thomas became interested in whether or not the act of cross burning should qualify as an illegal threat of violence:

Supreme Court justices don't ask questions only to learn from the advocates before them. Often, a justice will use the advocate as a conduit to teach the rest of the Court what that justice already knows. By asking [Deputy U.S. Solicitor General Michael] Dreeben if he was "understating the effects of the burning cross," Thomas was trying to amplify Dreeben's unheeded argument that the "signal of violence" conveyed by a burning cross is "like a sword of Damocles hanging over the person whose head has been threatened."

"Threatened," for Thomas, was too light of a term. He reminded his colleagues, through Dreeben, that the cross-burning ban, passed in 1952, was meant to address "almost 100 years of lynching and activity in the South" by the KKK and other hate groups that even the then-still-segregated state of Virginia found repugnant.

"This was a reign of terror," Thomas told Dreeben, "and the cross was a symbol of that reign of terror."

Sacks calls Virginia v. Black “surely the most powerful” of the cases “in which Justice Thomas made his voice heard,” and it’s hard to disagree with that description. But the case is also notable for the light it shines on Thomas’ deep interest in America’s ugly history of racism and racial violence, an aspect of his jurisprudence that is not always given its due.

For example, as I noted in August, liberal legal writer Jeffrey Toobin asserted in a recent New Yorker story that “Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control.” Had Toobin bothered to open a history book before writing that unfortunate sentence, he could have learned that the same cross-burning terrorists that Thomas denounced in Virginia v. Black also benefitted from racist Southern gun laws that kept firearms out of the hands of African Americans—which is one of the reasons why Thomas stressed African American history in his McDonald v. Chicago concurrence applying the Second Amendment to the states.

Justice Thomas may keep quiet during oral arguments, but that doesn’t mean he has nothing to say.