Clarence Thomas Teams Up With Supreme Court Liberals In Confederate Flag License Plates Case

Supreme Court Justice Clarence Thomas speaks at College of the Holy Cross after receiving an honorary degree from the college
Supreme Court Justice Clarence Thomas speaks at College of the Holy Cross after receiving an honorary degree from the college, Thursday, Jan. 26, 2012, in Worcester, Mass. (AP Photo/Michael Dwyer)

WASHINGTON -- Supreme Court Justice Clarence Thomas, one of the more conservative members of the country's high court, sided with four liberal justices Thursday in ruling that Texas could reject a specialty license plate featuring an image of the Confederate flag.

The Supreme Court ruled in a 5-4 decision on Thursday that specialty plates convey the state's endorsement of a particular message.

"Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate," wrote Justice Stephen Breyer in the majority opinion, which was shared by Justices Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Thomas doesn't side often with the court's more liberal justices -- although on certain issues, including private property and the rights of criminal defendants, he has a record of breaking with his fellow conservatives.

The court ruled Thursday that since the state has final authority over the messages conveyed, the plates are not considered a public forum. The court further ruled that the government has to be able to speak in order to function.

"Were the Free Speech Clause interpreted otherwise, government would not work," Breyer wrote. "How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and
bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?"

"Texas offers plates that pay tribute to the Texas citrus industry. But it need not issue plates praising Florida’s oranges as far better," Breyer wrote. "And Texas offers plates that say 'Fight Terrorism.' But it need not issue plates promoting al Qaeda."

The dissent, authored by Justice Samuel Alito and joined by Chief Justice John Roberts, Justice Antonin Scalia and Justice Anthony Kennedy, argued that custom Texas license plates do not imply an endorsement by the state of whatever message the plate carries. The dissent included images of other custom license plates issued by Texas that Alito argued the state doesn't endorse. One plate shows a can of Dr. Pepper, another carries an advertisement for Re/Max, a third is for the University of Notre Dame and a fourth reads "Rather Be Golfing." Alito and his fellow dissenters said it would be unreasonable for people to think that the messages on the plates were endorsed by the state of Texas.

"If a car with a plate that says 'Rather Be Golfing' passed by at 8:30 am on a Monday morning, would you think: 'This is the official policy of the State -- better to golf than to work?'" the dissent reads. "If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games -- Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State -- would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads 'NASCAR – 24 Jeff Gordon,' would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?"



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