HARLOTTESVILLE, Va.
Justice Clarence Thomas's emotional outburst during an oral argument last week was both stunning and illuminating. Many of us in the courtroom were surprised simply at the sound of his voice; he speaks only four or five times a year, less often than most of his colleagues speak during an average morning. More astonishing, however, was to hear the most conservative jurist on the court — and the man often accused of callousness about the plight of African-Americans — let loose with a personal accounting of what a burning cross means to a black man in America. His words changed the tenor of the debate, if not the minds of his colleagues, about the role of the law and the definition of justice.

At the oral argument in Virginia v. Black, a case challenging Virginia's cross-burning statute on free-speech grounds, Justice Thomas interrupted the government lawyer who was defending the constitutionality of the Virginia law. Justice Thomas had no real question; he simply wanted to elaborate upon the lawyer's argument, with which he clearly agreed. The burning cross, he said, symbolizes "no communication, no particular message." It symbolizes nothing but a "reign of terror" signifying "100 years of lynchings." Justice Thomas, who was raised in segregated Georgia, emphasized that, if anything, the lawyer and his colleagues on the bench had "underestimated the power of the symbol."

This ought not to have been a hard case, particularly for the most speech-protective court in history. After all, and as Justice Thomas illustrated better than anyone, the burning cross is powerful precisely because it is a "symbol" — a hideous, blood-drenched symbol — but it is not inherently dangerous. This court has always protected such symbolic expression, with prior cases deeming laws singling out cross- and flag-burning unconstitutional.

But with his personal narrative, Justice Thomas changed the terms of the legal debate. After he spoke, members of the court took turns characterizing burning crosses as uniquely threatening symbolic speech — as threatening as a gun, according to Justice Antonin Scalia — and as therefore undeserving of First Amendment protection. The dynamic is familiar to any former law student: a criminal law class on the definition of "consent" in a rape case is paralyzed when a woman in the back row says she was raped. A policy debate about whether to try juvenile offenders as adults stops when a student blurts out that his brother was killed in a gang fight.

These awkward silences happen when legal analysis and personal narrative (often of victimization) collide. At these moments, law school professors are rendered speechless — and Supreme Court justices, evidently, jettison their three-part tests to reassure their distressed colleague that indeed burning crosses are uniquely symbolic of imminent violence.

This judicial sensitivity is admirable. It's also rare in the high court, where even the most harrowing personal narrative is usually bleached out to clinical analysis and citation to precedent. But what if this case were about swastikas and no Holocaust survivor were on the court? Would the justices be so quick to deny death-row appeals if one of them had a son scheduled for execution?

There are two legal versions of what happened in the courtroom last week. The first is that what Justice Thomas did is unforgivable; by hijacking the argument into the murk of personal experience, he did violence to the disinterested, lucid distance necessary for justice to be achieved. The second version is that he recognized, and his colleagues chose to respect, that some questions cannot be answered dispassionately, especially ones as fraught as, "Can symbols constitute threats?" In this version, personal narrative in appellate decision-making is ignored only at the peril of true justice.

The latter conclusion is troubling. It suggests that the Supreme Court will never do "true justice" until there's a Holocaust survivor, a gay abortionist and a blind monk on the bench. And really, how much identity politics can you fit on the head of nine pins? But the protective swoop down from the bench last week — the near inability of any of Clarence Thomas's colleagues and friends to reframe the legal issue after he had framed the emotional one — suggests that the former possibility is wishful thinking, if not denial.

The truth likely lies somewhere between the two extremes: justice can only be done when judges representing the most diverse experiences and backgrounds sit on the nation's courts. From there, they can apply the stark, linear analyses of the law. Sometimes, when they fail to be wholly clinical, as Justice Thomas did, the law may still be enriched in spite of itself. And when we can finally push through these complicated silences to resume the legal conversation, we may finally begin to turn the ideal of justice into reality.

Dahlia Lithwick is a senior editor at Slate.