Muhammad Ali's Greatest Fight

by Howard Bingham

  “I thought our wiretap argument was the strongest chance of a reversal,” recalls Shapiro, who today practices law in Boston. “In the original hearing, the judge refused on the grounds of national security to let Ali hear one of the conversations, which supposedly took place with an official of a foreign government. I thought that clearly violated his Constitutional right to be confronted with the evidence against him. In my petition to the Supreme Court, this is what I argued. I thought they would grant us cert on that issue. Just in case, though, I threw in some other arguments including the denial of his conscientious objector claim. I was very surprised when that was the issue they decided to hear.”

  The nine men who would decide Ali’s fate on the Supreme Court—arguably the most powerful body in the country—were also the most unpredictable. When Richard Nixon was elected three years earlier, his first order of business was to tilt the previously liberal Court to the right. Using a series of his infamous dirty tricks and targeted appointments, he did just that. But as many presidents had already learned to their dismay, justices become notoriously independent as soon as they donned their robes, and it was often impossible to peg how one would vote on many issues.

  Nevertheless, Nixon’s choice for Chief Justice, Warren Burger, had so far proven himself very loyal to Republican ideology, siding with the Administration on many key issues. Although the justices were supposed to decide cases according to the Constitution, interpreting the intentions of the founding fathers, their own political views could often be counted upon to sway their judgment.

  Burger had a clear ideological agenda, believing he had a mission to undo many of the groundbreaking decisions ushered in by his predecessor, the liberal Earl Warren. Burger’s own power lay in his ability to choose who would author the legal opinions of the majority. These opinions contained the Court’s legal and Constitutional justification for particular Court decisions and were often more important than the decisions themself, influencing the entire federal judiciary in future legal decisions.

  According to Bob Woodward and Scott Armstrong’s groundbreaking 1979 expose of the Supreme Court, The Brethren, Burger sized up his ideological enemies on the Court and made sure to keep important decisions away from them, particularly cases involving criminal law, racial discrimination, and free speech. The Ali case would involve all three of these areas. Tops on the Chief Justice’s list of enemies were William Douglas and Thurgood Marshall.

  Douglas had been appointed by Franklin Roosevelt in 1939 and was among the most liberal members of the Court, vowing to act as a vanguard against Burger’s conservative agenda. On the surface, Douglas should have been among the most prominent defenders of Ali’s right to conscientious objection. But, ideology aside, these issues were never cut and dried.

  For more than five years, Douglas had been lobbying for the Court to hear a case on the constitutionality of the Vietnam War. He believed that, unlike America’s previous wars, Vietnam was a war of aggression. But he had considerable difficulty in getting his colleagues to intervene. They had their chance in 1967 in a case involving the constitutionality of the Tonkin Resolution, but Douglas could never find enough votes to grant cert (four votes are needed on the Court to decide whether to hear a case). His only ally was Potter Stewart, who had been appointed by the Republican President Dwight Eisenhower in 1958.

  The most surprising holdout on these war-related cases was Justice Hugo Black, another Roosevelt appointee. Black had opposed American intervention in World War II right until the bombing of Pearl Harbor. He was always against the Korean War and had opposed Vietnam from the beginning, lamenting to his colleagues “A waste, a mistake. We’re going to pay a high price for that. Big heroics today; wait until the death lists come in.”

  But Black firmly believed that these decisions were not the domain of the Court: they should be decided by Congress. The Court, he believed—along with many others—should not be involved in matters of war powers, national security, or foreign policy.

  Among the other traditional liberals on the Court, Thurgood Marshall and Byron White could not be counted on to oppose the war. White was appointed by John F. Kennedy, the man who plunged the country into Vietnam in the first place. The Justice was fiercely loyal to his mentor’s policies.

  Marshall might not have been expected to share the same loyalties towards the president who appointed him, Lyndon B. Johnson. Marshall, the first black justice in the history of the Court, was a pioneer civil rights activist in the battle against segregation. In 1965, when Johnson appointed a reluctant Marshall as the United States Solicitor General, the president appealed to the legendary lawyer by arguing, “I want folks to walk down the hall at the Justice Department and look in the door and see a nigger standing there.” Despite L.B.J’s racial insensitivity, however, he proved himself to be a committed champion of civil rights legislation. When Johnson eventually appointed Marshall to the Supreme Court in 1967, the new justice demonstrated a fierce loyalty to the president’s agenda and made no secret of the fact that he supported the war. However, Marshall had been Solicitor General when Ali was originally convicted, so he was forced to recuse himself from the case.

  The final moderate was William Brennan, another Eisenhower appointee who turned out to be a committed liberal on many issues. Brennan was morally opposed to the Vietnam War but didn’t believe the Court could take up a “political” question like the war unless Congress opposed it and the president continued to conduct it. He needed such a conditional excuse to justify the Court’s involvement.

  Among the conservative majority, Burger’s chief allies on most issues were his fellow Nixon appointee Harry Blackmun, Eisenhower appointees Potter Stewart and John Harlan; and, surprisingly, the Kennedy appointee Byron “Whizzer” White, a former NFL football star whose views were becoming increasingly conservative over the years.

  The justices were a disparate lot. Their ideology or political connections were often less important than a wide range of other factors. Nowhere was this more evident than in the bizarre weekly ritual called “movie day.” Every Friday afternoon the justices would convene in a basement storeroom and watch dirty movies. This practice went back to an old court ruling that material couldn’t be considered obscene if it has “redeeming social importance.” Since this term was so vague and subjective, it was left up to the Supreme Court to decide on a case-by-case basis. As Justice Stewart once said when asked what constitutes obscenity, “I know it when I see it.”

  On Friday afternoons, the clerks and justices would screen exhibits in obscenity cases involving banned films, creating a comical spectacle. Many of the clerks, and an occasional justice, would complain bitterly if the films didn’t contain enough hardcore material for their tastes. Justices Black and Douglas refused to attend these screenings, arguing that nothing should ever be banned. But the rest of the justices often relied on their own prudish instincts and morality to decide what was obscene rather than any legal basis. Dirty movies aside, the powerful judicial body was a force to be reckoned with and had a major influence on American political and social landscape.

  On April 19,1971, the Court turned to weightier matters as the Ali case finally reached its chambers.

  Chauncey Eskridge, representing Ali, began arguing the case of Cassius Clay vs. the United States of America before the eight justices. Representing the government was the U.S. Solicitor General Erwin Griswold. Earlier that week, Lieutenant William Calley had been convicted at his military court martial of ordering the brutal massacre of more than three hundred Vietnamese civilians three years earlier. Calley was given a life sentence.

  In Congress, Representative James Mann of South Carolina argued that he could not understand the justice in Calley’s conviction while “Muhammad Ali still walks the streets of America, a couple of million dollars richer by virtue of his failure to serve.”

  A poll conducted for Richard Nixon the same week revealed that, despite the rapidly changing social climate, America still had a lon
g way to go in its attitude about the war. Only 7 percent of Americans agreed that Calley should have been convicted while a full 78 percent registered their disagreement with the verdict.

  Similar attitudes seemed to be reflected on the bench of the highest court of the land. While Eskridge pleaded his case before the justices, his arguments were met with considerable skepticism, even hostility.

  Solicitor General Erwin Griswold, arguing the case for the government, noted that Ali had left little doubt that “if the Vietcong were attacking his people, the Muslims would become involved in that war.” Griswold cast doubt on the boxer’s selective objection to war, saying, “The petitioner just doesn’t want to fight the white man’s war, and I can understand that. But that’s not the same as being a pacifist.”

  Ali, he said, had been quoted in newspaper accounts saying, “I am a member of the Muslims and we don’t go to war unless they are declared by Allah himself. I don’t have no personal quarrel with those Vietcongs.” Since Ali would participate in a Holy War, Griswold argued, he was not a true conscientious objector. The justices appeared responsive to this argument to the extent that under questioning by the court, the Solicitor General felt confident enough to concede that Ali had been sincere in his beliefs, which were religiously based. This concession would be crucial later on.

  Arguing for Ali, Eskridge noted a 1955 Supreme Court ruling that Jehovah’s Witnesses could be classified as conscientious objectors even though they expected to participate in warfare at the time of Armageddon. He compared this to references about warfare in Black Muslim literature. In both cases, he argued, the references are quite “hypothetical.” Eskridge also made sure to differentiate the Nation of Islam from traditional Islam, assuring the Court that Black Muslims would not take part in a war involving Moslem countries.

  “Chauncey didn’t have a lot of trial experience,” recalls Shapiro, “but we thought that it was better the case was argued by a black man than by myself, a liberal New York Jew. After he was finished, it was obvious that it hadn’t gone well. I was very pessimistic. I was pretty sure we were going to lose.”

  His fears were well-founded. When the justices convened on Friday, April 23, to discuss the case, only the three most liberal members, Justices Brennan, Stewart, and Douglas, urged the reversal of Ali’s conviction. Justices White, Blackmun, Harlan, Black, and the Chief Justice Warren Burger believed the conviction should stand. Thurgood Marshall recused himself because he was Solicitor General of the United States at the time of the original conviction. By a vote of five to three, therefore, the Court upheld the conviction. Ali was headed to prison.

  If the chief justice is on the side of the majority on a given Court vote, tradition dictates that he assigns another member of the majority to write the Court’s opinion—the legal and Constitutional justification for their decision. Usually the Chief will assign the member of the Court whose views on the issue most closely parallels his own. In this case, Burger assigned the majority opinion to John Harlan, confident that he would make a convincing argument for Ali’s conviction. But when justice Harlan huddled with his clerks that evening to discuss the preparation of the opinion, he discovered that they had their own strong views on the matter.

  In those days, at the height of the Vietnam War, most of the clerks were considerably more radical than the justices they served and most of them strongly opposed the war. In The Brethren, Woodward and Armstrong noted that in a vote on whom to invite to a question-and-answer lunch, one of the clerks’top choices was radical anti-war actress Jane Fonda, one of the few prominent Americans more widely reviled at the time than Muhammad Ali. Because they write most Court opinions, the clerks have considerable influence on the justices. In this case, Harlan’s clerks persuaded him to take home a copy of Elijah Muhammad’s book Message to the Blackman in America to gauge for himself the Muslim teachings.

  Harlan had been appointed to the Court by President Eisenhower fifteen years earlier and had a reputation as a fair-minded jurist, despite his Republican views.

  “He had been a high ranking officer in World War II so he definitely supported the military,” says one of his clerks at the time, Thomas Krattenmaker. “But he was very torn by the Vietnam War, he thought it was an ill-defined adventure. He was not the kind of guy to say ‘my country right or wrong.’”

  A short while previously, Harlan, who was dying of cancer, had demonstrated a strong commitment to free speech in the case of Radich vs. New York, in which the proprietor of a Manhattan art gallery had been convicted of displaying American flags in a “lewd, vulgar and disrespectful way.” The flags were actually thirteen different impressionistic sculptures, each portraying the Stars and Stripes in the shape of a penis. Harlan presumed the display was a protest against the war and lobbied hard—unsuccessfully—to convince his colleagues to overturn the conviction.

  It was with this sort of open mind that Harlan took home Message to the Blackman in America. By the next morning, he had done a complete about-face. Without informing his colleagues or the Chief Justice, he immediately set about drafting a memo arguing that the government had mistakenly painted Ali as a racist and misinterpreted the doctrine of the Nation of Islam pertaining to Holy Wars, even though the Justice Department’s own hearing examiner, Judge Lawrence Grauman, found that Ali was sincerely opposed to all wars at the original hearing in 1966. In that decision, Grauman ruled, “I believe that the registrant is of good character, morals and integrity, and sincere in his objection on religious grounds to participation in war in any form. I recommend that the registrant’s claim for conscientious objector status be sustained.”

  If the government had followed Judge Grauman’s advice at the time, Harlan believed, this whole case could have been avoided. In conversations with his colleagues, Harlan had hinted that he was having second thoughts about the case, but none were aware of how serious he was.

  “The most important thing that caused him to change his mind was that he now understood the Muslim concept of Holy War,” explains Krattenmaker. “Basically, a Holy War was more of a purely philosophical religious speculation. Ali was saying that if Allah came down and commanded it, he would fight a war. You knew that wasn’t really going to happen. It was almost exactly the reason the Jehovah’s Witnesses won their conscientious objector cases during World War II.”

  On June 9, Harlan shocked the Chief Justice by sending him a copy of his memo along with the following cover letter:

  Dear Chief:

  My original Conference vote was to affirm, and it was of course on that basis you assigned the opinion to me. As I tentatively indicated to the Conference a week or so ago and in later conversation with you, subsequent work on such an opinion brought me serious misgivings, and I am now convinced the conviction should be reversed.

  In his memo, Harlan cites the religious doctrine of the Nation of Islam, quoting Elijah Muhammad’s Message to the Blackman in America, which states:

  The very dominant idea in Islam is the making of peace and not war; our refusing to go armed is our proof that we want peace. We felt that we had no right to take part in a war with nonbelievers of Islam who have always denied us justice and equal rights; and if we were going to be examples of peace and righteousness (as Allah has chosen us to be) we felt we had no right to join hands with the murderers of people or to help murder those who have done us no wrong.…We believe that we who declared ourselves to be righteous Muslims should not participate in any wars which take the lives of humans.

  The justice believed this passage proved that Black Muslims were legitimately opposed to all wars on religious grounds. But in recommending against Ali’s conscientious objector claim, the government had maintained his objection rested “on grounds which primarily are political and racial. These constitute only objections to certain types of war in certain circumstances, rather than a general scruple against participation in war in any form.” In his memo, Harlan called these arguments “misreadings and overdrawings.”

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sp; Harlan’s switch meant the justices were now deadlocked four to four. A tie vote meant that Ali would still go to prison. But Burger was furious, telling one of his clerks that Harlan had become “an apologist for the Black Muslims.” If Harlan had his way and stressed the government’s twisting of the facts, Burger believed, it might mean that all Black Muslims would be eligible for conscientious objector status.

  Burger was among the most conservative of the justices and strongly supported President Nixon’s obsession with stifling anti-war dissent. The day after the Court heard arguments in Ali’s case, the chief justice accepted an emergency petition from the Justice Department to evict from their makeshift campsite on the Washington Mall hundreds of peaceful army veterans who were protesting the war. Burger upheld the government’s claim that the veterans represented a threat to national security.

  Neither Burger nor the other members of the original majority had any intention of changing their vote. If the deadlock stood, Ali would go to prison. A tie vote is not accompanied by a decision, so he would never know why he lost.

  Justice Potter Stewart believed a clear injustice was about to be perpetrated. First, Ali had been convicted for political reasons; now the Court was about to send him to prison because they were afraid of the political consequences of setting him free.

  Meanwhile, Ali awaited the Court’s decision with the same aplomb he had displayed for the last four years. “If the judges look at me in what I believe, they’ll vindicate me,” he told an interviewer. “But if they send me to jail, I’m not going to leave the country. You don’t run away from something like that. When you go to jail for a cause, it’s an honor. If I have to go, I’ll be a famous prisoner.”

  Stewart and his clerks studied the case carefully until they discovered a compromise alternative.

  In order to satisfy a claim for conscientious objection, an applicant must satisfy three basic requirements. He must show that he is conscientiously opposed to war in any form. He must show that this opposition is based on religious training and belief, as interpreted in two key Supreme Court rulings. And he must show that his objection is sincere.