Justice Thomas Joins Court’S Refusal to Compel Texas to Issue Confederate Flag License Plate

Walker v. Texas Division, Sons of Confederate Veterans, Inc., No. 14-144, 2015 DJDAR 6811 (U.S. S.Ct. June 18, 2015).

On June 17, nine African-Americans were murdered in an African-American church in Charleston, South Carolina by a white gunman who allegedly posted racist messages which included images of the Confederate battle flag. The murders have prompted reactions across the country–especially in the South–over the propriety of continuing displays, public and private, of the Confederate flag.

In an opinion completed prior to those murders, but coincidentally released the following day, the United States Supreme Court, in a 5 to 4 opinion authored by Justice Breyer, considered a case brought by a Texas non-profit group–the Sons of the Confederate Veterans–which pursuant to Texas law had proposed a “specialty” license plate design which included a Confederate flag image, and which Texas had declined to approve. The group sued, alleging that the state’s rejection of their proposed plate violated their First Amendment right to freedom of expression. The majority disagreed, and in a rather dry opinion, concluded that the state’s license plates, specialty or otherwise, constituted government speech, and that the state had the right to refuse the appearance of government endorsement of any particular image or cause, as it did in refusing to approve the Confederate flag design.

In a rare alignment with the Court’s liberal wing (and an unexplained one, since he published no separate opinion), Justice Thomas provided the fifth vote by which the Court upheld the rejection of the old symbol of the Confederacy.