On April 23, 1971, the Supreme Court voted to send the world’s best-known athlete to jail.
The count was 5-3, with Justice Thurgood Marshall recusing himself, because he’d been with the Justice Department when it went after Muhammad Ali for declining to join the military back in 1967.
So why doesn’t Ali’s biography include several years — up to five, in fact — in a federal prison? Ali, his family and his millions of fans have a fellow named Tom Krattenmaker, a clerk for Justice John Harlan at the time, to thank.
"My initial reaction was that I thought the decision was wrong," Krattenmaker says. "So, yes. I, just a humble little clerk, sort of said, 'Mister Justice, I have an opinion on this. I think it should be coming out the other way, and here’s why.'"
Justice Harlan had been assigned to write the majority opinion, that 5-3 decision that would send Ali to jail. Krattenmaker was the right man in the right place at the right time.
"Well, I suppose it’s fair to say — or accurate to say — that I suppose I was one of the people who was most early opposed to the Vietnam War," he says.
In 1966, a little over five years before Tom Krattenmaker’s life intersected briefly with that of Muhammad Ali — Ali, then known as Cassius Clay — had, in part, based his claim that he was a conscientious objector on the fact that he was a minister in the Nation of Islam, also known as the Black Muslims, led by Elijah Muhammad. Attorney Jonathan Shapiro, who represented Ali for a time, recalls that it was not a position likely to garner much support.
"So there was a great deal of hostility toward those who opposed the war in Vietnam, and there was also a great deal of hostility toward people believed to be domestic terrorists, such as the Nation of Islam — the so-called Black Muslims," Shapiro explains. "So on all of these scores, Muhammad Ali was a lightning rod for all the people opposed to these movements."
Ali’s draft board rejected his application for conscientious objector status. He refused the draft. A federal judge sentenced him to five years in prison. Over several years, several lower courts upheld the draft board’s decision. Ali’s last hope to avoid prison was an appeal to the Supreme Court.
But there was one guy in authority who didn’t agree with Ali’s draft board, the various lower courts and the Justice Department itself. The guy was Lawrence Grauman, a retired circuit judge in Kentucky. In 1966, shortly after Ali had sought exemption from the draft as a conscientious objector, the Justice Department had asked Judge Grauman to review his claim. Judge Grauman interviewed the champ and concluded that his claim was valid, whereupon the Justice Department — which, remember, had asked for his opinion, presumably to strengthen its case — said, essentially, "Who cares what you think?"
It didn’t seem to matter at the time. Later it would matter a lot.
'Once In 100 Cases'
Shortly after he refused induction, Muhammad Ali had been denied the right to box by various commissions. All of them, actually. But in September of 1970, that right was restored by a U.S. District Court in New York, which bought the argument that since boxing commissions had licensed numerous felons and miscreants throughout the sport’s disreputable history, they couldn’t bar Ali from the ring because he said he was a conscientious objector.
So while he was waiting to hear whether the Supreme Court would hear his appeal, Ali beat Jerry Quarry and Oscar Bonavena. Then he lost his title to Joe Frazier. If the Supreme Court didn’t take the case, he’d lose his freedom as well. According to Tom Krattenmaker, the fact that Ali had resumed his career mattered.
"That put him back on the sports pages and made it possible for Justice Brennan to make the argument, which he made, that he’d become such an important and large public figure that the public wouldn’t understand if the Supreme Court didn’t review the case," Krattenmaker says.
So Ali made the judicial big time. Eight of the nine justices would hear the case that had been heard over and over in lesser courts.
And as previously stated, on April 23, 1971 the eight voted 5-3 to uphold the conviction, and that would have been that. Except that Tom Krattenmaker told Justice Harlan that he figured that that as a minister in the Nation of Islam, Ali was entitled to claim he was a conscientious objector.
"I thought — perhaps unwisely — but I thought I knew enough about the doctrines that Elijah Muhammad had propounded in the Lost-Found Nation of Islam," Krattenmaker says. "What those doctrines stood for was a pacifism that was — had only one exception, and that was for wars that were declared by God, as he would put it, declared by Allah, to fight a theocratic war. And for all other wars, it was — people who belonged to what they called the Lost-Found Nation of Islam were not to participate."
Muhammad Ali had presented the same argument. But he’d also said things like "I got no quarrel with them Viet Cong," which had perhaps bolstered the argument that Ali only opposed certain, specific wars, such as the one the U.S. was waging in Southeast Asia, rather than all wars. Krattenmaker focused on the fact that Ali’s faith dictated that he could only fight in a war declared by Allah. Practically, this meant no wars declared by men. Just over 15 years earlier, a member of the Jehovah’s Witnesses had prevailed at the Supreme Court with a similar argument.
OK. But how often does a decision get changed after the Supreme Court has voted?
"I’d say it happens maybe two times a term, maybe three times a year, when a justice who was assigned to write an opinion, or one of the other justices, changes his or her mind and it therefore changes the outcome in the case," Krattenmaker explains. "It’s not always a result of some law clerk arguing a point. It can be delving into the record, or you’re trying to write the opinion, and you realize how complicated it is, but it’s, it’s — what should I say? Maybe it happens once in 100 cases."
It happened in 1971. In part, certainly, because Tom Krattenmaker, who’d been opposed to the war for years, helped it to happen and in part because between 1966 and 1971, a lot of the rest of the country had embraced the attitudes Krattenmaker had developed as a college student.
Anyway, it happened. But then what? Because even after Tom Krattenmaker had changed Justice Harlan’s mind, the score stood 4-4. In baseball, a tie goes to the runner. At the Supreme Court, a tie affirms the lower court’s decision. 4-4, like 5-3, meant Ali would go to jail. But the court had agreed to hear Ali’s case because they wanted to demonstrate that the system was fair, even to a member of the Nation of Islam.
"Sending somebody to jail with a 4-4 split and the Supreme Court not being able to make up its mind conveyed the completely opposite conclusion," Shapiro says.
So 4-4 couldn’t stand. But how would the four justices who wanted to overturn Ali’s conviction convince the four inclined to uphold it to switch their votes?
Breaking The Tie
Here’s where that retired judge in Kentucky comes in, the guy who was asked by the Justice Department to interview Ali and assure the department that he was not sincere in his religious beliefs. When the retired judge opined otherwise, the Justice Department neglected to mention his opinion to the draft board.
"Justice Stewart argued that when the Justice Department had given advice to the local draft board, they had told the draft board that Ali was not sincere in his religious beliefs," Krattenmaker says.
"Then, when the case finally got to the Supreme Court, almost five years later, the United States government, through the solicitor general, told the court, 'We do not doubt or deny his sincerity.'"
As Tom Krattenmaker recalls, Justice Stewart spied a way to break the tie.
"The Justice Department had given erroneous legal advice to the draft board, and since the draft board never explained why they’re denying him CO status — they just said, 'We’re denying it' — it could be that they were relying on that advice, which they now, themselves, admit was erroneous."
That logic — or sleight of hand, however you want to characterize it — provided the out the justices needed. The record would show that Muhammad Ali’s conviction had been overturned by a vote of 8-0.
Nearly half a century after Muhammad Ali’s five-year ordeal was ended by that decision, Tom Krattenmaker recalls that he felt good about it. Not giddy, necessarily, which is how I might have felt in his place, but good.
Krattenmaker says he was just doing his job. Shapiro feels that by doing his job, Krattenmaker helped change contemporary history.
"That decision had an enormous impact on Ali’s future, and, to that extent, the future of the sporting world, the future of America’s sense of self," Shapiro says. "But for that, he would have spent five years in a federal prison, and that would have been the end, I think, of his role in America’s conscience."
Read more about the story of Tom Krattenmaker and Muhammad Ali's Supreme Court case in Leigh Montville's most recent book, "Sting Like a Bee: Muhammad Ali vs. the United States of America, 1966-1971."
This segment aired on September 9, 2017.
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