POLITICS

Clarence's Questions, Part 1: The Case Of The Burning Cross

10/07/2011 05:14 pm ET | Updated Dec 07, 2011

WASHINGTON -- Justice Clarence Thomas has not asked a question at a Supreme Court oral argument since Feb. 22, 2006. Many have commented on the meaning of his reticence, and Thomas himself -- who is as loquacious in speaking engagements as he is mum on the bench -- has put forward several explanations for his opting out of the lively back-and-forth among his eight colleagues and the lawyers who appear before them.

But this series is called "Clarence's Questions," and not "Quiet Clarence," for a reason: As his sixth anniversary of self-imposed silence approaches this term and his third decade on the Court begins, it's worth examining the moments when Justice Thomas felt compelled to step into the fray.

Court-watchers know that Thomas is plenty outspoken in his written opinions, where he often argues solely for himself due to his uncompromisingly originalist philosophy. Indeed, most lawyers arguing before him can already surmise how Thomas will vote in their cases, so his silence leaves room for them to address the justices who are more open to persuasion. Yet Thomas' silence has also left many casual observers -- that is, ordinary American citizens -- with the impression that the man either does not care about the cases or cannot intellectually compete with his colleagues.

With help from The Oyez Project at Chicago-Kent, The Huffington Post has compiled a comprehensive audio collection of Thomas' questions, including some "deep cuts" that had been left unattributed in the Court's official transcripts, so that HuffPost readers can hear Thomas and decide for themselves the impact of his silent streak.

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Of all the cases in which Justice Thomas has made his voice heard, Virginia v. Black, argued in 2002, was surely the most powerful.

In 1998, Bobby Black led fellow Ku Klux Klan members in the burning of a 30-foot cross near an open stretch of highway in Carroll County, Va. As the cross burned, a county sheriff crashed the rally to arrest Black under a state law making it a felony for anyone to burn a cross "with the intent of intimidating any person or group of persons."

Usually, prosecutors must prove criminal intent. But the cross-burning law removed this requirement by declaring the act itself sufficient evidence of a defendant's intent to intimidate.

Black asserted that this part of the law rendered the ban a violation of free expression under the First Amendment. The trial court convicted Black, but the Virginia Supreme Court agreed with him, striking down the law and throwing out his conviction. The U.S. Supreme Court agreed to hear the case.

Thomas, then in his 11th year on the Court, sat through 20 minutes of Virginia's lawyer, William Hurd, being peppered with questions from the other justices over the nuances of cross-burning by the side of a road. Justice Ruth Bader Ginsburg wanted to know "what evidence, other than the burning itself, was there to show intimidation." Justice Anthony Kennedy asked, "If a burning cross is just put on a hill outside of the city, everybody in the city can be deemed intimidated?" Justice Antonin Scalia compared the burning of a cross to the brandishing of a gun.

And when Deputy U.S. Solicitor General Michael Dreeben stood up to support Virginia's defense of its law, Justices Sandra Day O'Connor, Ginsburg, Kennedy and Scalia all pounced, imploring him to shoehorn cross-burning into the Court's various First Amendment precedents.

Through all these questions, both Dreeben and Hurd tried in vain to convince the justices that cross-burning carries with it "real threats of bodily harm with a specific intent to intimidate" that override any constitutionally protected expressions of bigotry that might be bound up in the action. But the other justices weren't hearing them.

So Thomas spoke up.

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 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."

And on this topic, Thomas spoke with the moral authority of one who has felt the presence of that sword himself. He is the current Court's lone African-American justice as well as its sole Southerner. In his memoir, "My Grandfather's Son," Thomas reflected on growing up in the segregated South. African Americans in Savannah, Ga., he wrote, "so firmly accepted" their second-class status "that no unpleasantness was needed to enforce it." Still, hints of terror were never far away, even coming from his classmates in the integrated Catholic seminaries he attended for high school and the first year of college.

Ultimately, Thomas made little impact with insistence from the bench that a burning cross was "unlike any symbol in our society" and could therefore not be fit into the Court's prior First Amendment jurisprudence. Indeed, the justices returned to doing just that almost immediately after he made his point.

And the Court's decision, handed down in April 2003, struck down Virginia's cross-burning ban and vacated Black's conviction. Thomas, writing in dissent, alone held that the ban as written passed constitutional muster. For him, the statute prohibited "only conduct, not expression."

"Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment," Thomas concluded, "those who hate cannot terrorize and intimidate to make their point."

Justice Thomas has never hesitated to speak only for himself on the wide range of issues that come before the Court. But when looking for a reason why he has ceased asking questions from the bench, Virginia v. Black may hold the seeds of an answer. There the issue was not just an abstract point of law. It was personal. And no one listened.

CORRECTION: An earlier version of this story stated incorrectly that Justice Clarence Thomas has not asked a question from the bench since Nov. 8, 2005. The correct date is Feb. 22, 2006.

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