The subject also evoked strong emotions from his white colleagues, who joined in expressing concern about violence and racism during arguments in the second cross-burning case to reach the Supreme Court in a decade.
Justices are considering how far states may go to discourage the Klan and others from burning crosses, a provocative practice rooted in racial hatred but still given some free-speech protections. At issue is the constitutionality of a 50-year-old Virginia law that bans cross burning.
The arguments produced an unusually candid look at the justices, particularly Thomas, who generally speaks only once or twice a year during arguments and refuses to give interviews. "This was a reign of terror, and the cross was a symbol of that reign of terror. Isn't that significantly greater than intimidation or a threat?" Thomas, the second black to serve on the court, asked a Bush administration lawyer who supported the law.
The Supreme Court historically has been protective of First Amendment rights of the most controversial of groups, including burners of the American flag, adult entertainers and even cross burners. Michael Dreeben, the deputy solicitor general defending the Virginia law, said crosses historically have been used to intimidate minorities and that more than a dozen states have laws punishing the crime.
Thomas, who was raised in segregated Georgia, said burning crosses were used to intimidate blacks and other groups. "We had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan," Thomas said. "It was intended to cause fear and to terrorize a population."
The last time Thomas spoke at such length was 1995, his fourth year on the Supreme Court, in another case involving a KKK cross display. The Klan won in a 7-2 ruling, joined by Thomas.During Wednesday's argument, the justices repeatedly interrupted the lawyers and sometimes talked over each other. "The cross has acquired a potency that is at least equal to that of a gun," Justice David H. Souter observed. Justice Antonin Scalia, perhaps the most conservative member of the court, said blacks would prefer to see a rifle-toting man in their front yard rather than a burning cross.
Rodney Smolla, a lawyer representing three people convicted in separate cases under the Virginia law, said the practice may be evil and disgusting, but it is protected by the Constitution. He said states cannot single out cross burning for prosecution and allow other things that may be socially unacceptable, such as swastika displays.
The Virginia Supreme Court overturned the convictions of the men, ruling that the burnings were symbolic speech. The state court relied on a high court decision a decade ago in another cross-burning case. The Supreme Court struck down a city hate crimes ordinance in St. Paul, Minn., that criminalized cross burning aimed at frightening or angering others "on the basis of race, color, creed or gender." Virginia's law prohibits the activity when done to intimidate a person or group.
Early in Wednesday's argument, and before Thomas' comments, some justices seemed concerned about the Virginia law, particularly one part allowing the burning of a cross to be considered by itself evidence of an intent to intimidate. Thomas, apparently exasperated by the direction of the arguments, spoke at length in a deep, steady voice.
The arguments came four years after two white neighbors in Virginia Beach, Va., tried to burn a 4-foot cross in the yard of James Jubilee, who is black, after a night of partying. Jubilee moved his family out of the neighborhood because of concern for their safety. In the other case, a Pennsylvania man was convicted of burning a 30-foot cross on private land in rural southern Virginia during a 1998 rally.
Virginia solicitor William H. Hurd said the Klan rally was held after whites became angry about mixed-race couples and that they played the hymn "Amazing Grace" then talked about killing blacks. He pointed at the large courtroom columns, to compare the size of the cross that was set on fire.
Justice John Paul Stevens asked if the state was only prosecuting cross burnings because they are obnoxious speech. Hurd said such speech is allowed, but that threatening speech should be barred.
Smolla tried to compare cross burning with flag burning, which no justices seemed to support. Then he asked what the difference is between a burning cross and a burning torch. "One hundred years of history," Justice Anthony M. Kennedy interjected.
The Supreme Court was told there are cross-burning laws in California, Connecticut, Delaware, Florida, Georgia, Idaho, Montana, North Carolina, South Carolina, South Dakota, Vermont, Virginia, Washington state and the District of Columbia.