It was not the first time a liberal writer had taken a cheap shot at the conservative Supreme Court justice. New York Times reporter Linda Greenhouse once described Justice Antonin Scalia as Thomas’ “apparent mentor,” yet we now know that Thomas has been the one quietly influencing Scalia’s jurisprudence. But the comparison to the slave power system was particularly contemptible, especially because no Supreme Court justice since Thurgood Marshall has written more frequently or powerfully about American racism than Thomas.
Consider his role in the 2003 case Virginia v. Black, which involved a state law criminalizing the burning of a cross “with the intent of intimidating any person or group of persons.” While most of his colleagues focused on First Amendment law, Thomas offered a different view. The law was intended to counteract “almost 100 years of lynching and activity in the South” by the Ku Klux Klan and other hate groups, he reminded the courtroom during oral argument. “This was a reign of terror, and the cross was a symbol of that reign of terror.”
When the case was decided several months later, Thomas went further in a lone dissent, arguing that cross burning was part and parcel of that racist terrorism and therefore deserved no protection under the First Amendment. “Those who hate cannot terrorize and intimidate to make their point,” he wrote.