The "What If?" questions in the Ali case

Marty Lederman

Earlier this week on SCOTUSblog, I published a post recounting the legal travails of Muhammad Ali after he refused induction into military service in 1967--culminating in the Supreme Court's 1971 ruling in his favor on the appeal of his criminal conviction shortly after he lost to Joe Frazier in the "Fight of the Century."  The piece has prompted colleagues and other readers to ask a series of interesting questions about the case that I thought it would be worth flagging here, with just a few preliminary thoughts on possible answers.


1.  Did the State of New York violate the Equal Protection Clause by suspending Ali's boxing license?

As I explain in the post, within hours after Ali refused to step forward for military induction, the New York State Athletic Commission withdrew his license to fight on the ground that licensing a man who refused induction was “detrimental to the best interests of boxing”; and, within days, every important state boxing commission in the nation had followed suit, thereby effectively preventing Ali from fighting in the United States.  Most of the public--the white public, anyway--very strongly supported this development, including most of the sporting media.

Ali eventually sued the New York Commission, arguing that it violated the Constitution by stripping him of his license.  Judge Marvin Frankel quickly rejected Ali's meritless Due Process and Eighth Amendment claims, but he went out of his way to signal that perhaps Ali had a valid Equal Protection claim, to which the complaint obliquely alluded, and he invited an amendment to fill out that allegation.

Ali's lawyers heeded the judge's suggestion, and re-pleaded with an allegation that the Commission had “on other occasions licensed professional boxers who had been convicted of crimes involving moral turpitude,” including Rocky Graziano, who was licensed despite the fact that he had been twice convicted of petty larceny and had been court-martialed while serving in the United States Army and convicted of being absent without leave and of disobeying orders, and Sonny Liston himself (whom Ali had defeated to capture the heavyweight crown), who had been convicted of armed robbery and of assault with intent to kill.  In discovery, Ali's lawyers (including Michael Meltsner and Ann Wagner) uncovered that the Commission had, in fact, granted, renewed or reinstated boxing licenses on at least 244 occasions to boxers who had been convicted of one or more felonies, misdemeanors or military offenses involving moral turpitude.

That showing led Judge Walter Mansfield, to whom the case had been reassigned, to hold that the withdrawal of Ali's license violated the Equal Protection Clause.  He wrote:

If the Commission in the present case had denied licenses to all applicants convicted of crimes or military offenses, plaintiff would have no valid basis for demanding that a license be issued to him.  But the action of the Commission in denying him a license because of his refusal to serve in the Armed Forces while granting licenses to hundreds of other applicants convicted of other crimes and military offenses involving moral turpitude appears on its face to be an intentional, arbitrary and unreasonable discrimination against plaintiff, not the even-handed administration of the law which the Fourteenth Amendment requires.

Was that decision--which resulted in the renewal of Ali's license--correct on the merits?  Perhaps so, in light of the arguments the Commission offered to defend its decision.  I haven't read the briefs, but as Judge Mansfield described it, the Commission relied solely on explanations (e.g., that Ali's conviction was recent, and that he had not already served his sentence) that did not, in fact, distinguish Ali's case from many others under the Commission's established practice.

But what if the Commission had been more candid about what appear to have been the true reasons that it singled out Ali for disfavored treatment--namely, (i) that because Ali was such a well-known figure, the Commission wanted to use his case to "send a message" to other fighters to comply with the law; and (ii) that one of the principal, established bases for licensing decisions was to preserve "the general reputation of professional boxing as a sport" and, rightly or wrongly, the general public was much less sympathetic to Ali the "draft evader" than it was to brutal criminals such as Liston, so that the sport's reputation would take an especially severe hit if the Commission continued to allow Ali to fight?

I haven't researched the question, but I assume that such rationales would have passed muster under the Equal Protection Clause.  If so, it would mean that Ali was permitted to resume his career, and to fight Frazier and George Foreman, only because the Commission was (perhaps understandably) unwilling to be forthright about the true basis for its action.

2.  At the time Ali was convicted, what were the odds that he would be able to fight Joe Frazier as early as 1971, and to eventually win back his title?

Slim, at best.  For one thing, as discussed above, Ali's prospects of having his license restored in the civil case were nonexistent at first, barely preserved by a generous and creative maneuver by Judge Frankel, and even then highly unlikely--dependent, probably, on both a sympathetic judge and the tactical decision of the Commission to be less than forthcoming about the true basis for its decision.

But even if he recovered his license, a prison term would have likely ended, or at least radically altered, Ali's career.  (If Ali had served even part of his five-year sentence beginning in 1969 or 1971, he might never have gotten the opportunity to fight Frazier, or to have been given the chance to wrest the title from George Foreman in 1974; and it's less likely he would have had the chops to defeat Foreman after such a long layoff.)  And it was fairly remarkable that he did not go to prison.

The Supreme Court was on the verge of denying cert. in his criminal case in March 1969--which would have meant the start of his five-year prison sentence--when the Solicitor General filed his surprise brief informing the Court that Ali (and the defendants in a number of other pending cases) had been overheard in FBI wiretaps that might have been unlawful under recent Court decisions.

That eleventh-hour reprieve effectively delayed Ali's day in the Supreme Court until after he had won the right to get his license back . . . and that fortuity, of sorts, appears to have made all the difference.

Judge Mansfield ruled in Ali's favor in the civil case in September 1970 and, after Ali's fights with Quarry and Bonavena, the Ali-Frazier match was announced on December 30, 1970, while Ali's second cert. petition was pending before the Supreme Court.  For that second petition, Ali had brought the NAACP Legal Defense and Educational Fund onboard his legal team.  The Inc. Fund lawyers, including Jonathan Shapiro and Elizabeth DuBois, bolstered the legal case by adding the two Sicarella arguments that eventually carried the day in the Harlan and Stewart draft opinions.

Even so, the odds of Ali persuading the Court both to hear his case and to rule in his favor were decidedly stacked against him.  Just twelve days after the Frazier fight was announced, the Court granted the petition.  The vote (which I should have included in my original post) was 4-3 to grant, with Justice Harlan voting to hold (presumably for the Court's decision in Gillette), and Justice Marshall recused.  In addition to the three Justices who supported Ali on the merits (Douglas, Brennan and Stewart), Justice Black cast the decisive vote to grant--he thought it was a close case, although at conference after oral argument he tentatively voted to affirm the conviction.  If the Court had denied cert.--which had been a distinct possibility--then Ali might never have fought again.

And, then, of course, as I describe in the post, even after the grant, Ali's career would probably have ended (literally or in effect) with the first Frazier fight, had Justice Harlan not unexpectedly switched his vote on the merits in June 1971, and had Justice Stewart not thereafter crafted a way to avoid a 4-4 summary affirmance.

As things stood in early 1969, the odds of all these things happening as they did were, to say the least, very low--in retrospect, we can see that Ali and his counsel threaded a very thin needle.  If his legal cases had floundered at even one more of their numerous junctures, sporting history--and perhaps Ali's future health--would have been radically different.

3.  Was Ali, in fact, eligible for conscientious objector status?

Justice Harlan drafted an opinion answering this question "yes," even though Ali acknowledged that he would fight in a (very hypothetical) "holy war" if commanded to do so by Allah, speaking through Elijah Muhammad.  Was Justice Harlan correct that such a concession did not render Ali ineligible for the statutory exemption, which was by its terms limited to persons religiously opposed to participation in war "in any form"?  I think Justice Harlan was right that the 1955 Sicurella decision appeared to support that conclusion; but, if so, was Sicurella correct?

That's a difficult question.  Sicurella might not have been decided the same way today; a Court more inclined to read statutory text literally might well have concluded that the phrase "war in in any form" means any war, no matter how abstract and hypothetical.  The correctness of Sicurella, however, and of Harlan's never-published draft opinion in Clay, is a closer question if one is more amenable to a purposivist reading, as the Court was in 1955 and in 1971.  From that perspective, the answer would largely depend on why Congress drew the distinction between persons religiously opposed to participation in war "in any form"--who were entitled to the exemption--and those persons who "merely" had "selective" objections to certain wars (e.g., Catholics who adhered to a "just war" theory under which participation in the Vietnam War was immoral), who were not entitled to an exemption.

I don't have time or space here to discuss the origins and function of the "in any form" criterion, except to say that if the Court was correct, in Gillette v. U.S., 401 U.S. 437, 455-60 (March 1971), in explaining why Congress established that criterion, then it made a great deal of sense to say, as Harlan was prepared to do, that Ali should have been afforded C.O. status.  A key question, then, is whether Congress actually enacted the "war in any form" condition for the reasons the Court described in Gillette.  The Court's account (written by Justice Marshall) seems persuasive to me, but I haven't carefully considered the matter, or the legislative history surrounding the 1940 enactment.

4.  How would the cases have come out if Ali had been an obscure member of the Nation of Islam rather than heavyweight champion?

There's no way to have any confidence about such counterfactuals, of course, but I'll hazard a guess:  At virtually every turn--but perhaps not quite in every instance--Ali was treated differently because of who he was.  Sometimes his fame (or infamy, as the case may be) worked in his favor; sometimes against him.  Occasionally, it made no difference at all.  For example:

-- The New York Commission, and other state commissions, probably would not have stripped a relatively unknown fighter of his boxing license--indeed, according to Judge Mansfield, it rarely did so even when boxers were guilty of much more serious offenses.  (On the other hand, perhaps the statistics were different with respect to persons convicted of failure to enlist circa 1967, by virtue of how controversial such refusals were; I do not know.)

-- Judge Grauman, the hearing officer in the C.O. proceedings, was a fellow Kentuckian, and might have been an admirer of Ali, or at least someone who was predisposed to understand him and to credit his testimony.  Perhaps that contributed to his conclusion that Ali was entitled to C.O. status.

-- My understanding is that when a hearing officer concluded that C.O. status was warranted, the Department of Justice would usually (but not always) urge the Appeal Board to grant the exemption--or, at the very least, convey the hearing officer's views to the Appeal Board.  Yet in Ali's case the Department pressed hard for a denial of C.O. status, even after Judge Grauman's decision, almost certainly because of intense political pressure and public scrutiny.  At a minimum, it's hard to imagine that DOJ would have failed to provide the Board with the hearing officer's assessment, as it did here, if the objector were not someone as famous and as controversial as Ali.

-- A different Nation of Islam follower probably would not have had his conversations intercepted in wiretaps of Martin Luther King, Jr. and Elijah Muhammad--and thus, if that person had been convicted and if he had petitioned the Supreme Court for relief, the Court would in all likelihood have denied the petition the first time around.

-- And even if our hypothetical non-Ali objector had filed a second petition in 1970, he might well have not had the assistance of the Inc. Fund attorneys, and the Court would likely have denied review if the petitioner were not scheduled to be part of the "Fight of the Century" two months later.

-- On the merits of the Supreme Court case, there's really no way of telling whether Ali's notoriety helped him or hurt him when it came to the vote of particular Justices--perhaps some of each.

-- With respect to Justice Harlan, in particular, whose switched vote led to reversal:  My sense is that his ultimate judgment, that Ali was entitled to an exemption, was not based upon his views, positive or negative, of Ali himself, or of the possible effect on the boxing world.  But who knows what considerations, conscious or subconscious, might have affected how he approached the case?  Moreover, if the petitioner had been an unknown member of the Nation of Islam, would Tom Krattenmaker have bothered to dig into the pertinent religious texts?  If not, would Harlan have changed his vote?

-- This strikes me as the least uncertain of the many hypotheticals:  If it had been another Nation of Islam petitioner, and if the Court had granted cert. and then was eventually split 4-4, it is much less likely that the Justices would have bothered trying to negotiate a way to avoid affirmance by an equally divided Court.  But, of course, it's very unlikely, at best, that they ever would have reached that point of decision in the first place.

All of which is to say, as with most counterfactuals worth contemplating:  Who knows?
Posted 8:42 AM by Marty Lederman [link]