Justice Thomas, speaking (or not) about the First Amendment

Monday, October 8, 2007

This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.

If First Amendment lawyers and scholars had to rely on Justice Clarence Thomas’ spoken words for his views on freedom of expression and freedom of religion, they would be hard-pressed to reach firm conclusions. In his 16 years on the Supreme Court beginning in October 1991, Justice Thomas has authored plenty of scathing dissents and filed his share of majority opinions — but he has let his voice be heard from the bench in only seven First Amendment cases out of 94 in which he has participated.

During his 1991 confirmation hearings, Thomas fielded nine questions from eight senators about First Amendment issues. In each instance, and true to the general practice, he gave little indication of his strong views, as seen since, on the establishment clause, commercial speech, hate speech, and campaign-finance laws. Since his confirmation, Justice Thomas has carved out a reputation for himself as the Court’s most inscrutable justice in oral argument. Typically silent during counsels’ arguments before the bench, Thomas often looks up at the ceiling, rocks in his chair or whispers to neighboring Justice Stephen Breyer. But when he does speak, his comments are the more potent for their infrequency. 1

Moved to speak
Justice Thomas’ rare interjections in oral arguments generally, and in First Amendment cases specifically, are difficult to parse. Several of the seven cases received press coverage mainly because of the fact that Thomas spoke up during argument. Although Thomas’ jurisprudence is sometimes equated with a broad view of protected speech (he is particularly unsympathetic toward regulations on commercial speech and campaign finance), two notable cases in which he spoke during oral argument reveal a strong disposition hostile to certain forms of symbolic speech and expressive conduct.

Consistent with his general practice, Thomas rarely makes his voice heard during oral arguments involving commercial speech, prisoners’ rights and campaign-finance cases, even when he has authored vigorous dissents. However, he has spoken out vigorously in three hate-speech cases, 2 though he has a mixed record in asking questions in other race-related cases such as those involving affirmative action. 3 He has also asked questions or offered commentary in two commercial-speech cases, 4 one employee-speech case 5 and one religion case. 6

Among the cases in which Justice Thomas spoke from the bench, his remarks in Virginia v. Black (2003) and Capitol Square Review Board v. Pinette (1995) are most noteworthy. In Black, for example, he argued that cross-burning was tantamount to a “true threat” and thus was unprotected expression under the First Amendment. During oral arguments in Black, Thomas was passionate in his contention that a burning cross is symbolic of a “reign of terror.” He went so far as to reprimand the state’s counsel of “understating the effects … of 100 years of lynching.” 7

His comments in Black drew considerable attention, both on and off the Court. In that regard, Dahlia Lithwick, writing in The New York Times, noted that Thomas’ “emotional outburst” in Black “changed the tenor of the debate, if not the minds of his colleagues, about the role of the law and the definition of justice.”

Similarly, eight years earlier in Capitol Square, Thomas brought a historical perspective to the oral arguments when he focused on the Ku Klux Klan’s history of racial intimidation. By that measure, he took sharp exception to “shoe-horning a political case into the religious component of the First Amendment.” In short, where race-hate speech is involved, Thomas is likely to break with his customary silence (though he was quiet in R.A.V. v. City of St. Paul (1992), a cross-burning case in which he voted to affirm the First Amendment claim).

The listening approach
Of course, Thomas’s relative silence in oral arguments is not confined to First Amendment cases. It reflects his more-global view of the role of a judge in an appellate case. Thomas has thus explained his usual silence in oral argument as an unwillingness to interfere with arguments before the bench, allowing lawyers to make their cases without interruption.

In a 2006 address in Atlanta, he decried the “unnecessary and distracting” aggressiveness in oral arguments, remembering justices who “actually allowed me to make my argument.” So when he is sitting back in his chair or holding his head in his hands during argument, he is putting into practice a philosophy that, as he said, “my job is not to rape your argument, not to make your argument, not to hurt your feelings.” 8

Authors Michael Fletcher and Kevin Merida cite an explanation Thomas gave at a question-answer session for students in 2000: his self-consciousness as a youth about speaking in his dialect, Geechee-Gullah, spoken by some descendents of African slaves in parts of South Carolina and Georgia, for which he was teased by teachers and classmates. The authors add that Thomas “probably just is not very comfortable in the fast-paced forum of oral argument where questions come fast and furiously and from all angles.”

To know why Justice Thomas rules the way he does on First Amendment issues, then, one will find more guidance in his written than in his spoken words. If we believe Thomas himself, 99.9% of all questions from critics would be cleared up if people would just read the record. 9

Alyssa Work is an intern at the First Amendment Center.



1 Audio transcripts identifying justices by name are available through the U.S. Supreme Court Web site and Oyez.org for 52 First Amendment cases since the 1991-1992 term. Forty-four do not identify justices by name, designating speakers only with the word “Question:”, so it is possible that Justice Thomas has spoken in yet other cases, which would bring the total to more than the seven cases in which he is identified as a speaker. However, there were no news media references to comments in other First Amendment cases.

2 See Wisconsin v. Mitchell (1993), Capitol Square Review Board v. Pinette (1995) and Virginia v. Black (2003).

3 See Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), Parents Involved in Community Schools v. Seattle School District #1 (2007), Meredith v. Jefferson County Board of Education (2007).

4 See Lorillard Tobacco v. Reilly (2001), Johanns v. Livestock Marketing Association (2005).

5 See United States v. National Treasury Employees Union (1995).

6 See Lamb’s Chapel v. Center Moriches School District (1993).

7 Virginia v. Black 538 U.S. 343 (2003).

8 McDonald, R. Robin, “Justice Thomas Opens Up on ‘Aggressive’ Appellate Judges,” Fulton County Daily Report, Oct. 27, 2006. Fletcher, Michael, and Merida, Kevin, Supreme Discomfort: The Divided Soul of Clarence Thomas. Doubleday, 2007.

9 Gerber, Scott D., First Principles: The Jurisprudence of Clarence Thomas. NYU, 1999.

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