News reports that Justice Clarence Thomas ended three years of silence during oral arguments Wednesday reminds me of the story of the 5-year-old boy who had yet to speak a word.
Then, one morning, he says to his father, “Daddy, the oatmeal is cold.”
“Wow, that’s amazing,” the dad exclaims. “Your first words — and a complete sentence at that. But why, why did it take you so long to speak?”
“Up until now, everything’s been fine,” the youngster responds.
Like the father to his son, I, too, can recall the times I heard Thomas speak during oral arguments. And, as in the case of the son, on both occasions the justice’s comments were memorable for their clarity and authenticity.
The first time was Nov. 6, 1996, during arguments in Robinson v. Shell Oil Co. The question before the court was whether Title VII’s prohibition on companies retaliating against employees who filed a discrimination claim applied to former employees as well. The company argued that the law applied only to current employees.
Thomas, a former chair of the U.S. Equal Employment Opportunity Commission, expressed incredulity. He said Shell’s view of the law would enable companies to fire employees illegally and then tell their now former workers that if they filed suit they would never work in the industry again.
Thomas later wrote the court’s unanimous opinion that the anti-retaliation provision protects former employees.
Thomas spoke again on Dec. 11, 2002, when the court heard arguments on a Virginia law that made it a felony “for any person … with the intent of intimidating any person or group … to burn … a cross on the property of another, a highway or other public place.”
The defendants’ attorney argued that the law violated the First Amendment by criminalizing expressive conduct, namely the burning of a cross. The state countered that the law made cross burning a crime only when it was intended to intimidate.
Thomas, who is black, had seen his share of cross burnings while growing up in the Deep South before the Civil Rights Era. The courtroom fell silent as he asked how burning a cross could serve any purpose other than to intimidate.
Thomas ultimately dissented from the court’s conclusion in Virginia v. Black that the law was unconstitutional as applied in the case.
“[J]ust as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point,” Thomas wrote in dissent. “In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.”