Did the burning cross speak? Virginia v. Black and the debate between Justices O’Connor and Thomas over the history of cross burning

Abstract

The Supreme Court's recent cross burning case – Virginia v. Black (2003) – saw dueling historical narratives. Justice O’Connor, writing for the majority, painted a history in which the Klan often burned crosses to intimidate, but also did so for other, “expressive” reasons. Justice Thomas, in dissent, related a history in which the burning cross never speaks. Interestingly, O’Connor and Thomas used many of the same historical sources. How did they reach such different results? While both O’Connor and Thomas interpreted (and stretched) the historical sources in different directions, their dispute ultimately turned on their diverging doctrinal views.

Citation

Kahn, R.A. (2006), "Did the burning cross speak? Virginia v. Black and the debate between Justices O’Connor and Thomas over the history of cross burning", Sarat, A. (Ed.) Studies in Law, Politics and Society (Studies in Law, Politics, and Society, Vol. 39), Emerald Group Publishing Limited, Leeds, pp. 75-90. https://doi.org/10.1016/S1059-4337(06)39004-7