Lippett passed on the Chief's instructions to the police of the Supreme Court and of the District of Columbia. As the D.C. riot police moved in to arrest the protesters, the veterans turned and waved to former Chief Justice Earl Warren, who was watching, ghostlike, from his office window overlooking the front steps.
Marshall had seen enough of the effects of Burger's paranoia. He was apparently listening to scare stories from the Court police that demonstrators posed a real threat to the Court's security.
Burger already had a gun-carrying chauffeur and guards that followed him wherever he went, even inside the Court building. He wore dark glasses and a hat in public to avoid being recognized as he prowled Georgetown antique shops. He at times used a false name when he traveled. He had brought in the kind of metal detectors used at airports to screen spectators entering the courtroom. But this time, he had gone too far.
Marshall dictated a one-and-a-half-page, single-spaced memo to the conference. It was not combative in tone, but there was no question to whom it was addressed. The Court had overreacted when the government came to them claiming that the veterans were a menace to the safety of Washington, Marshall said. The Chief, and then the full Court, had agreed to prohibit the veterans from sleeping on the Mall because the government claimed pre
-
emptive action was necessary to protect the Congress, the White House, even the Court. Now, the Marshal of the Court had overreacted. The arrest of the veterans on the steps was unnecessary, he said. The Court was in no position to anticipate what visitors or demonstrators
might
do.
Naturally, no member of the Court would ever condone such clearly unconstitutional police tactics, Marshall said. But just the same, the arrests discredited the entire institution. Similar arrests in other situations would no doubt result in litigation. Who would finally rule on those cases, Marshall wondered, if the Supreme Court itself had permitted such clearly unconstitutional arrests?
Marshall was not sure that the Chief understood. But the local U.S. District Court made the issue crystal clear, as it dismissed all charges after finding that there was no evidence of any violence in the demonstration. "Inconvenience alone," a lower-court judge held, "doesn't warrant a criminal prosecution."*
Brennan was the only Justice who really wanted to hear the Cassius Clay case
(Clay v. U.S.).
Clay, who had changed his name to Muhammad Ali in
1964,
had been sentenced to prison for five years for refusing in
1966
to take the traditional step forward and be
* The next week, over ten thousand anti-war demonstrators were summarily arrested under what then Assistant Attorney General William H. Rehnquist called "qualified" martial law. Federal officials cited the arrests at the Court as precedent. These arrests were subsequently declared illegal by a federal court.
inducted into the Army. The former world heavyweight-boxing champion based bis refusal on religious grounds, claiming that, as a Black Muslim, he was a conscientious objector and thus entitled to exemption from military service.
Apart from the complicated war and draft issues, there were racial overtones to the case. Ali was one of America's best-known and most popular black athletes. His appeals had taken six years and, stripped of his title by the World Boxing Association, the fighter had been banned from boxing for nearly four years at a loss to him of millions of dollars in purses. Public sympathy was growing for Ali, but at the same time the Black Muslim faith had been portrayed as separatist, anti
-
white and bizarre.
The case had already come up to the Court two terms before, and the conference had voted not to hear it, thus letting Ali's conviction stand. A last-minute revelation by the government that Ali had been overheard on a national-security wiretap had prevented the decision from being announced. The technicality had allowed the Court to send the case back to the lower court for further hearings.
The Justices had hoped it would not come up the ladder again, but when it did, Brennan finally persuaded his colleagues to grant cert.
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 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.
On Friday, April
23,
with Marshall recused because he had been Solicitor General when the case began, the conference decided,
5
to
3,
that it agreed with Griswold. Ah was not really a conscientious objector and should go to jail.
The Chief immediately assigned Harlan to write the majority view. 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. 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. Moreover, his switch tied the vote,
4
to
4.
That would, however, still mean that Ali would go to jail.
The Chief was not about to shift his own vote. Nor were Black, White or Blackmun, the other members of the original majority. They were particularly disturbed that Harlan wanted to stress the government's twisting of the facts. Harlan's view could mean that all Black Muslims would be eligible for the conscientious objector status.
The Court year was coming to a close. If the Court remained deadlocked, Ali would finally go to jail for draft evasion. Since decisions in which the Justices were equally divided were not accompanied by opinions, Ali would never know why he had lost. It would be as if the Court had never taken the case.
Stewart was particularly upset by this prospect. He proposed an alternative: the Court cou
ld simply set Ali free, citing
technical error by the Justice Department. The proposal had several advantages. For one, the ruling in this case would not become a precedent. It also would not broaden the categories under which others might claim to be conscientious objectors.,
Gradually, all but the Chief agreed to go along with Stewart's plan, giving Ali seven votes.* 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.
Stewart drafted the final unanimous
per curiam.
Ali's victory was announced on June
28.
He heard the news in Chicago. "I thank Allah," Ali said, "and I thank the Supreme Court for recognizing the sincerity of the religious teachings that I've accepted." He did not know how close he had come to going to jail.
As the end of the term approached, Black's health continued to deteriorate. One day during the last week in May, he was returning to his chambers following conference when his knees buckled. By the time his clerks reached him and carried him into his office, he was shivering with a high fever. "They are after all my old majorities," he babbled as his clerks wrapped him in a blanket.
Black recovered from the fever, but his strength was seriously depleted. Disabling headaches plagued him, and his cheerful whistle as he strolled through the marble halls was suddenly missing.
* Douglas's concurrence retained language making it obvious that it was originally a dissent. His clerk, who normally would have corrected it, refused to work further on the opinion after Douglas insisted on retaining an incorrect statement of the Black Muslim position on holy wars.
For Black, who advocated positive thinking as the cure for every malady, the idea that he was no longer in full control of his own destiny was torture. For years, he had talked of how Holmes, Brandeis and Cardozo had lingered on at the Court, unable to perform their work competently. But Black was determined to remain. He had resisted Warren's and then Douglas's hints that he resign, and he had done his best to ignore Harlan's remarks that perhaps they both had stayed on too long. Now, in his thirty-fourth term, he had kept on his desk a small card bearing the exact lengths of service of John Marshall and Stephen J. Field. Both had served thirty-four terms and he would surpass both in
a
few months. But, finally, he was no longer sure that he could hold out.
On June
13,
however, Black read a lengthy article in that Sunday's
New York Times
with unusual interest. It was the first installment of a top-secret government history of United States involvement in Vietnam. The
Times
cited numerous documents showing that government officials had lied to the American people about the war for three decades. The articles were based on a massive study, commissioned by former Secretary of Defense Robert S. Mc-Namara, covering the period
1945-1967.
The entire
47-
volume set, called
The Pentagon Papers,
was considered extremely sensitive. Black was pleased to see the press expose what he regarded as a long, sordid story.
The series continued the next day. But on Tuesday, June
15,
Attorney General John Mitchell, arguing that the articles endangered the national security, obtained an order in federal District Court in New York enjoining further publication.
Black was stunned. "They're actually stopping it," he said to his clerks. In his view, that was an obvious violation of the First Amendment. The press was free; it could not be stopped from publishing material the government thought damaging to the national security. That was prior restraint; it was an absurd notion.
On Friday, June
18,
publication of
The Pentagon Papers
began in
The Washington Post,
which had also obtained portions of the secret war study. The government lost twice in federal courts, before securing a temporary restraining order against the
Post.
By the following Thursday, June
24,
both cases were before the Supreme Court
(New York Times v. U.S.
and
U.S.
v.
The Washington Post).
For Black, the developments were like a shot of adrenaline.
Both papers had been stopped from publishing the war series for almost a week. Each day's delay, in Black's view, was a defeat for the press and for the First Amendment. The authors of the First Amendment had anticipated that the press's ongoing critique of the government would involve great risk.
Black geared up for what was clearly going to be a historic test, and this case was not going to be easy. Black felt that Brennan and Marshall, as well as Douglas, would probably join him in favor of the newspapers' right to publish. The Chief, Harlan and Blackmun would likely be on the other side. That left Stewart and White for the fifth vote that Black needed. White was never a great supporter of First Amendment freedoms. He might sympathize with the Justice Department in this case, or he might fear what the papers would say about John Kennedy's role in the war.
No
one really knew what the
Times
or
Post
had.