June 4, 2016

How the Supreme Court decided the draft evasion case against Muhammad Ali.

It's hard to remember the details, and today's obituary's don't linger on this topic. For example, the NYT obituary just says: "As Ali’s draft-evasion case made its way to the United States Supreme Court, he returned to the ring on Oct. 26, 1970, through the efforts of black politicians in Atlanta."

But Ali had been convicted in 1967 and sentenced to 5 years in prison. The Supreme Court case that ultimately kept him out of prison came in 1971. What did the Court decide? Here's the very unusual inside story, found in "The Brethren" by Bob Woodward and Scott Armstrong:
Apart from the complicated war and draft issues, there were racial overtones to the case.... Public sympathy was growing for Ali, but at the same time the Black Muslim faith had been portrayed as separatist, antiwhite and bizarre....
Given Ali’s prominence, the Justices would allow him the satisfaction of having his case reviewed by the highest court in the land, a satisfaction given to few defendants. None of the Justices believed Ali had a chance of winning.

At oral argument, Solicitor General Griswold pointed out that Ali had left little doubt that “if the Vietcong were attacking his people, the Muslims would become involved in that war.” Moreover, Ali had been quoted in the press as 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, he was not really a conscientious objector, Griswold said.
In the conference after the oral argument, the judges voted 5 to 3 in favor of the government — because you have to oppose all war to qualify as a conscientious objector — and Justice Harlan was assigned to write the case. (The 9th justice was Thurgood Marshall, "recused because he had been Solicitor General when the case began.")
But as Harlan’s clerk began preparing a draft opinion, he was persuaded by another clerk who had read Alex Haley’s Autobiography of Malcolm X to reconsider the question of Ali’s opposition to war. Reading the Message to the Black Man, one of the most trusted texts of the Black Muslims, the clerk became convinced that Ali’s willingness to fight in a holy war was irrelevant. For all practical purposes, Ali was opposed to all wars.

Harlan was not inclined to buy any of this. But he agreed to take home his clerk’s background materials and study them in the specially illuminated library of his Georgetown townhouse. 
Harlan was nearly blind.
The next morning, he had a surprise for his clerks. He had read the materials and he agreed wholeheartedly, wanting them incorporated, as written, into his draft. Harlan was persuaded that the government had mistakenly painted Ali as a racist, misinterpreting the doctrine of the Black Muslims despite the Justice Department’s own hearing examiner’s finding that Ali was sincerely opposed to all wars.

Harlan wanted to confront the Justice Department’s misrepresentation and state explicitly that there had been “no basis in fact” all along for them to say that Ali was not really opposed to all shooting wars. Because there had been no indication outside Harlan’s chambers that his view had changed, when his memo suggesting reversal of the conviction was circulated, it exploded in the Court. Burger was beside himself. How could Harlan shift sides without notifying him? He was even more irritated by the incorporation of Black Muslim doctrine in the opinion. The draft said that Black Muslim doctrine teaches “that Islam is the religion of peace …and that war-making is the habit of the race of devils [whites] … [and that Islam] forbids its members to carry arms or weapons of any kind.” Harlan had become an apologist for the Black Muslims, Burger told a clerk.
Harlan switched sides, and his opinion didn't convince the others who'd sided with the government. (These were Chief Justice Warren Burger and Justices Black, White, and Blackmun.) They didn't like any of that, especially what looked like groundwork for all Black Muslims to claim conscientious objector status. So the vote at that point was at 4 to 4, which would leave the result from the court below in place and would have sent Ali to prison for draft evasion. There wouldn't even be an opinion explaining why, and this bothered Justice Stewart, who "proposed an alternative: the Court could simply set Ali free, citing a technical error by the Justice Department." Unlike Harlan's opinion, it set no precedent that anyone else would be able to use.
Gradually, all but the Chief agreed to go along with Stewart’s plan.... That left Burger with a problem. If he dissented, it might be interpreted as a racist vote. He decided to join the others. An 8-to-0 decision would be a good lift for black people, he concluded.

43 comments:

Michael K said...

An early warning had anyone the wit to see it. Muslims are not loyal to the United States.

David Begley said...

Supreme Court draft sure got that Religion of Peace thing wrong.

Darrell said...

Ali never served a day in jail. That's the point of the appeal--all the way to SCOTUS.

Hagar said...

The law is the law and all that, but drafting these celebrities always was nonsense.

Remember Broadway Joe? So what was the Army supposed to do with him? Send him to Viet Nam with his own personal MASH unit to keep him on his wobbly legs?

I was stationed in Frankfurt when we heard Elvis was coming over with the 4th Armor Div. and a number of guys were mumbling about what they were going to do to him if they met up - not everybody were fans of rock and roll yet. Then word went around to lay off, Elvis was all right - all the hoopla was just Hollywood crap - and this seemed to be true. But Elvis still was a headache and a pain in the butt for the Army, since they could not afford to have anything bad happen to him, so regardless of whatever Pvt. Presley's wishes might have been, he was still a very special VIP and treated accordingly.

traditionalguy said...

Bottom line: Ali picked this fight and Ali won this fight. He won it because he refused to surrender to the insider Military-Industrial Complex's threat to destroy him.

But he was actually a nice person. He was just afflicted with an excessive level of courage.

Freder Frederson said...

Muslims are not loyal to the United States.

Does your opinion extend to Christian denominations that encourage conscientious objection (e.g., Quakers, Mennonites, Seventh Day Adventists)?

Michael K said...

"Does your opinion extend to Christian denominations that encourage conscientious objection"

No, only those who support war against us, like most of the immigrants being delivered secretly to the US by Obama.

You probably don't know enough history or the Bible to recognize something about "Render to Caesar..."

The Quran is quite a bit different in tone.

Quran (2:191-193) - "And kill them wherever you find them, and turn them out from where they have turned you out. And Al-Fitnah [disbelief or unrest] is worse than killing...
but if they desist, then lo! Allah is forgiving and merciful. And fight them until there is no more Fitnah [disbelief and worshipping of others along with Allah] and worship is for Allah alone.

Fernandinande said...

Ali was a victim of low expectations:
Ali registered for the draft on his eighteenth birthday and was listed as 1-A in 1962.[112] In 1964, he was reclassified as 1-Y (fit for service only in times of national emergency) after two mental tests found his IQ was 78[113] (16th percentile), well below the armed force's 30th-percentile threshold.[112] (He was quoted as saying, "I said I was the greatest, not the smartest!")[112][113] By early 1966, the army lowered its standards to permit soldiers above the 15th percentile and Ali was again classified as 1-A.[21][112][113] This classification meant he was now eligible for the draft and induction into the United States Army during a time when the U.S. was involved in the Vietnam War.

CWJ said...

I've always felt that it was not coincidence that Ali was called up, and have viewed his draft resistence primarily as resisting the setup. As we've seen, government institutions are not particularly principled.

Just reposting my opinion from Althouse's previous Ali thread.

Unknown said...

Freedom: Let me ask you to demonstrate the Quakers, Mennonites and Seventh Day Adventists who are engaged in various forms of Holy War against anyone.

And then show me the Islamic people who oppose Jihad; or do not want the Jews exterminated, etc. There are a few: That lady Hirsi, for example. I do recall that your side thinks she is a traitor and should never be seen in public because she opposes having Muslims chop off women's genitals. She is a moderate Muslim, on the side of peace. And your side despises her and wants the punishment for "infidel!" applied.

So, until actual facts demonstrate that Islam is a religion of peace, trying to equate them to the Seventh Day Adventists is a lie and you know it.

Hitler, after all, was peaceful..... to the Swiss and the Spanish, as well as the Swedes. Under your logic, he was the same as Mother Teresa, right? He only targeted those who deserved it! Just like Islam.....

Fernandinande said...

As compared to Ali's time, you don't hear much about heavyweight boxing nowadays, perhaps because the top guys (boxing discriminates against da womens) are white foreigners. (Fury, Klitschko, Glazkov, ...)

Michael K said...

Cassius Clay, aside from being a crude braggart, was a champion.

Muhammed Ali was a rather dumb symbol used by black Muslims to improve their own image.

Elvis Presley did a lot for his career by going into the Army, which made sure he was not in danger. They would have done the same for Clay. Even in World War II the celebrity guys who faced danger were all volunteers like Jimmy Stewart.

ndspinelli said...

HBO did a decent film about this decision, Muhammad Ali's Greatest Fight. Frank Langella had a good performance playing Warren Burger.

Ali was the darling of the left. Joe Frazier was the boogey man. Joe was a good, blue collar, guy. Ali was a hypocrite. But, Ali was pretty, witty and anti-war. Joe took care of Ali when he was suspended. He gave Ali money. He gave him a title shot in 1971. That was the biggest fight since Louis/Schmeling. And, Joe kicked the shit out of Ali. Joe was on a mission. After all Joe did for Ali, he was called a "stupid gorilla" and "Uncle Tom" by Ali. Joe put Ali on his ass, broke his jaw, and won a unanimous decision that the judges would have loved to give Ali.

damikesc said...

Without reading what she links to here, odds are SCOTUS decided the case poorly. Anything from the early to mid-70's was decided poorly, by and large.

ndspinelli said...

SCOTUS had decided to uphold the conviction. But, Harlan changed his mind and got Blackmun to flip as well. Harlan was dying of cancer @ the time.

boycat said...

As with the black subculture in America generally, Cassius Clay and Muhammad Ali were products of the dominant white culture, albeit mostly unintended.

Real American said...

so much for deciding cases on the record!

David said...

Amazing story about the decision. I have never read The Brethren. Indeed the Justices read the newspapers too.

Ali was uneducated but he wasn't stupid. IQ tests are built for those with a decent education.

Hagar said...

I suspect he was not in a cooperative mood when he took that test.

He was not any kind of stupid and presumably had been processed through the Louisville Public School system and thus was more familiar with the practice of filling in little ovals with a No. 2 pencil than I was when I took the Army test.

At that, I remember sometime in 1955-56 when the Army decided to discharge all personnel with an "IQ" score of less than 90 and used it to get rid of a large number of Indians, Mexicans, etc., who had joined in WWII before they could speak English very well, if at all. The Army flat refused to let them retake the test now that they could.

William said...

This wasn't the government's intent, but those three years out of the ring probably delayed the onset of Ali's Parkinson's Disease by an equal amount of time. There's no amount of money, fame, and glory that would be worth what Ali endured in his later years........Ted Williams served in both WWII and Korea and in dangerous combat. Those were the years of his peak athletic ability. He missed out on a lot, including the big bucks of free agency. Towards the end of his career the good folks at Fenway used to boo him. If you add up injustices and sacrifices I would say he's way ahead of Ali in both departments.

eddie willers said...

he returned to the ring on Oct. 26, 1970, through the efforts of black politicians in Atlanta."

Actually, it was Governor Lester Maddox.

If you are unfamiliar with him, you can listen to Randy Newman's "Rednecks" from his Good Old Boys album.

Trigger warnings galore.

Mark said...

From this perspective decades after the fact, the whole objector claim appears to be a farce within the larger farce of the draft itself and the even larger farce of LBJ's conduct of the war. It understandable that a LOT of men resisted the draft and did not want to fight. NOT because of any "conscientious objection" to war, not because of any pacifist belief, religious or otherwise -- they did not want to go to this particular war not because they did not want to shoot at other people, but because they did not want to get shot at.

That is not to charge them (or Ali) with cowardice -- it was then an entirely reasonable response because even then it was clear that Lyndon Buffoon Johnson and his minions had no clue or desire to fight the war in a competent fashion.

So it was all farce. Top to bottom. For them. Of course, the greater number of men who were involved were sincere -- and the South Vietnamese people were certainly in dire need of assistance and protection -- only to discover that, because of the effed-up way the war was conducted by LBJ and also Nixon, not to mention Congress, that it was all in vain.

Mark said...

Meanwhile, for all those who say (rightly) what a buffoon Trump is -- LBJ had more than his share of Trump in him too.

The Cracker Emcee said...

My Dad flew with some of the men who flew with Ted Williams. He was not liked in his squadron because he spent so much time bragging about how much money he could be making if he didn't have to be serving with them. Not that that detracts from the danger he faced serving his country. Dad was a combat pilot in the Pacific during WWII but didn't have to go back for Korea because he was an engineer at Hanford at the time. Sometimes it pays to hit the books, kids.

Jim Nicholson said...

"An early warning had anyone the wit to see it. Muslims are not loyal to the United States."

If you're forming that opinion on the basis of this article, then neither are we Quakers loyal. Will your Beloved Leader propose deporting us as well?

Leora said...

Ali tested with an IQ of 78? That is the best evidence I saw him speak at Cornell about Malcolm X and on television on talk shows in the 60's and I would have rated him as above average verbal intelligence based on that.

eddie willers said...

Not that that detracts from the danger he faced serving his country.

Nor hitting .401

Joanne Jacobs said...

My father met Ali when he was a spokesman for products. He thought Ali was very smart about marketing himself, the best pitchman he'd ever met.

Zach said...

Harlan was not inclined to buy any of this. But he agreed to take home his clerk’s background materials and study them in the specially illuminated library of his Georgetown townhouse...
The next morning, he had a surprise for his clerks. He had read the materials and he agreed wholeheartedly, wanting them incorporated, as written, into his draft.


So Harlan changed his opinion after reading the group's promotional material? That kind of attitude toward life ends up with a time share condo and a garage full of As Seen on TV! products.

The Supreme Court of the 1970s always comes across as incredibly gullible. Like the quote from The Simpsons' Monorail episode: "We're twice as smart as the people of Shelbyville! Just tell us your idea and we'll vote for it."

Quaestor said...

Public sympathy was growing for Ali, but at the same time the Black Muslim faith had been portrayed as separatist, antiwhite and bizarre....

Why did Woodward and Armstrong choose anti-white? (Safari insists on the hyphen.) Why doesn't racist apply more accurately?

Quaestor said...

Federson wrote: Does your opinion extend to Christian denominations that encourage conscientious objection (e.g., Quakers, Mennonites, Seventh Day Adventists)?

Information about the Mennonite jihad doctrine would be helpful in sorting this out.

Jonathan Graehl said...

Burger's switched vote is lightweight. Is this just a bitch move by a generally respected thinker or does he have no principles at all?

Joe said...

To bad the court didn't simply declare the draft itself unconstitutional. It is clearly involuntary servitude.

damikesc said...

If you're forming that opinion on the basis of this article, then neither are we Quakers loyal. Will your Beloved Leader propose deporting us as well?

Muslims, historically, have zero problem with war and violence.

Quakers have a pretty long record of not being fond of either.

Not quite the same.

My father met Ali when he was a spokesman for products. He thought Ali was very smart about marketing himself, the best pitchman he'd ever met.

Floyd Mayweather is arguably better at that.

And he is a certifiable drooling idiot. Fifty Cent offering $750,000 to the charity of Floyd's choice if Floyd could read one page of any Harry Potter book is classic trolling.

Why did Woodward and Armstrong choose anti-white? (Safari insists on the hyphen.) Why doesn't racist apply more accurately?

Blacks can't be racist, cultural appropriating bastard!

rcocean said...

What an absurd story! And its shows in vivid detail how absolutely ridiculous it is to have nine politicians in robes deciding these kinds of things or making law and opposed to an extremely narrow job of interpreting it.

I'm not a constitutional lawyer - but I thought the SCOTUS weren't supposed to do the job of Ali's legal consul and dispute the facts of the case.

I mean the clerk picked up a paperback book and decided the DoJ was wrong?

Judas Priest!

Education Realist said...

I didn't see it mentioned, but this incident was made into an HBO film with Christopher Plummer playing Harlan, Frank Langella playing Berger, Ed Begley playing Blackmum, Peter Gerety as Brennan, John Bedford Lloyd as Byron White. I only caught the end of it, and keep meaning to find it on demand.

There is nothing inconsistent about Ali's verbal abilities and his IQ of 78. It's common for people to confuse improvisation, humor, and wit with brains.

JCC said...
This comment has been removed by the author.
JCC said...

"It's common for people to confuse improvisation, humor, and wit with brains. "

See also OBAMA, Barack. President, United States 2008 - 2016 ...

JCC said...

@ CWJ -

In '66 and '67, those years, pretty much anyone who was 1-A got drafted if he didn't enlist first to avoid the infantry. So Clay getting drafted probably wasn't some kind of racism at work, if that's what you were suggesting.

I thought it was pretty well known that the Justices often craft decisions to avoid setting some significant precedent, which meant bending - sorry, interpreting - the facts where possible and the legal logic somewhat to still get to a point that satisfied everyone's sense of what needed to get done. Sandra O'Connor was perhaps typecast as being quite good at doing this, that is, narrowly writing opinions so that they applied to only to a small set of circumstances and did not create some new and possibly unintended consequences.

This was done at least in part to curtail the worst excesses of,say, the Chief Lecher Douglas, for example, who would have in this case found it quite acceptable for any person to be a conscientious objector by saying they would only go to war for things they believed in in fervently or something. (distinguished apparently from those who go to war frivolously). Douglas, by the way, was the progenitor of the Sotomayor who-cares-about-the-legal-details, it's-all-about-the-feelings school of judicial thought.

Joe said...

In '66 and '67, those years, pretty much anyone who was 1-A got drafted if he didn't enlist first to avoid the infantry.

It appears to be more around 10%.

JCC said...

@ Joe -

About 10% of males in the age group served, but almost all who were eligible to be drafted, were. Most of those who were not drafted, escaped the draft because they had deferments, for school, for having children, for essential industry, for medical conditions, etc. Because the system was patently unfair to the poor and/or those who did not choose to go to college, in 1969, Selective Service was modified to a national lottery wherein every male was given a number based on your birthdate and only a few deferments were still available, such as medical.

List of deferments during that era;
http://www.calledtoservevietnam.com/blog/information-about-the-vietnam-era-draft/draft-classifications-during-the-vietnam-war/

Rick said...

[and that Islam] forbids its members to carry arms or weapons of any kind.”

How could an adult of even average intelligence believe something so ridiculous, something proven false in thousands of conflicts by millions of adherents, something not asserted by any mainstream Islamic leader? Instead of arguing about the precedent why did the other justices not point out Islam's bloody history and text of the Quran itself calling for war and exhorting violence?

This reminds me of Roberts Obamacare vote. Trying to hard to find a justification for their political preference they grasp at what they think is a clever resolution, not realizing no one has brought it up because the underlying premise is so ridiculous no one thought it necessary to mention.

I suspect they changed votes and helped change the rationale because they understood such an idiotic statement would have damaged the institution and thus their own positions. Maybe Harlan understood that and was playing chicken.

Donatello Nobody said...

@Jim Nicholson: maybe you missed the part about Ali apparently being okay with participating in a war if it involved Muslims being attacked?