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

• Date: 26 September 2006
• Pages: 75-90
• Published date: 26 September 2006
• DOI: https://doi.org/10.1016/S1059-4337(06)39004-7
• Author: Robert A. Kahn

DID THE BURNING CROSS SPEAK?

VIRGINIA V. BLACK AND THE

DEBATE BETWEEN JUSTICES

O’CONNOR AND THOMAS OVER

THE HISTORY OF CROSS BURNING

Robert A. Kahn

ABSTRACT

The Supreme Court’s recent cross burning case –Virginia v. Black (2003)

– saw dueling historical narratives. Justice O’Connor, writing for the ma-

jority, painted a history in which the Klan often burned crosses to intim-

idate, but also did so for other, ‘‘expressive’’ reasons. Justice Thomas, in

dissent, related a history in which the burning cross never speaks. Inter-

estingly, 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 di-

rections, their dispute ultimately turned on their diverging doctrinal views.

INTRODUCTION

The recent Supreme Court case involving cross burning, Virginia v. Black

(2003) is noteworthy for its dueling historical narratives. In concluding that

Studies in Law, Politics, and Society, Volume 39, 75–90

Copyright r2006 by Elsevier Ltd.

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ISSN: 1059-4337/doi:10.1016/S1059-4337(06)39004-7

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states have the power to ban those cross burnings that intimidate others –

but not those that have ‘‘expressive’’ purposes – Justice O’Connor presented

a short history of cross burnings. She concluded that ‘‘a burning cross does

not inevitably convey a message of intimidation,’’ even though the cross

burner ‘‘often’’ intends to intimidate the recipient (p. 357). Justice Thomas,

in dissent, argued that cross burning is never expressive. Drawing on the

same history used by O’Connor, he concluded that ‘‘cross burning has al-

most invariably meant lawlessness and understandably instills in its victims

well-grounded fear of physical violence’’ (p. 391).

Justices O’Connor and Thomas describe the same historical events, draw

on many of the same sources, but reach opposing results.

1

How is this

possible? Does one or the other read the sources more accurately? What

accounts for their diverging histories of cross burning? To explore these

questions, this essay examines O’Connor and Thomas’s narratives. To that

end, this essay looks at the sources each side uses (primarily books and

newspaper articles) as well as the arguments justices draw from the sources.

As we shall see, both O’Connor and Thomas stretch the sources to make

their points, but this by itself does not explain why their accounts read so

differently.

Instead, the differences in the two narratives turn on the doctrinal pref-

erences of each justice. The Virginia statute held that cross burning is pun-

ishable only when done with ‘‘intent to intimidate’’ (Virginia v. Black, 2003,

p. 348). However, the statute contained an evidentiary provision stating that

the jury could infer intimidation from the burning of the cross itself (id.).

O’Connor, who held the evidentiary rule unconstitutional, found a past full

of situations in which Klan members, and others, burned crosses without

wanting to scare anybody. Conversely, Thomas, who wanted to keep the

inference in place, found a past in which most of those who burned crosses

intended to intimidate their victims.

JUSTICE O’CONNOR AND EXPRESSIVE CROSS

BURNING

After briefly referring to fourteenth-century Scotland, where tribes used

burning crosses as a signaling device, Justice O’Connor asserts that cross

burning ‘‘is inextricably linked with the history of the Ku Klux Klan’’ (p.

353). Over the next few pages, O’Connor relates this history, relying pri-

marily on two sources Wyn Wade’s (1987) The Fiery Cross: The Ku Klux

ROBERT A. KAHN76