For nearly two centuries, the Supreme Court has made its dcisions in absolute secrecy, handing down its judgements in formal written opinions. Only these opinions, final and unreviewable, are published. The Court's deliberative process -- its preliminary votes, internal debates and tentative decisions -- is hidden from public view.
As a result of this secrecy, the American public never knew:
How the Court, which unanimously overturned former heavyweight boxing champion Muhammad Ali's conviction for draft evasion, initially voted 5 to 3 in favor of sending Ali to prison.
How former star outfielder Curt Flood almost won his antitrust suit against professional baseball.
How the Court in 1973 nearly handed down a landmark ruling that would have had the effect of enacting the Equal Rights Amendment.
William 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, had been sentenced to prision for five years in 1966 for refusing to take the traditional step forward and be inducted into the Army. The former world heavyweight boxing champion based his 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 ad draft issues, there were racial overtones to the case. Ali was on 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, antiwhite 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 justice had hoped it would not come up the ladder agai, but when it did, Brenan finally persuaded his colleagues to hear it.
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 Erwin 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, 1971 with Justice Thurgood Marshall taking himself out of the case because he had been solicitor general when it began, the jutices, meeting in the secrecy of Conference, decided, 5 to 3, that they agreed with Griswold. Ali was not really a conscientious objector and should go to jail.
Chief Justice Warren Burger immediately assigned John Warren Burger immediately assigned John 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 "Autoilography of Malcolm X' to rconsider 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 opposd 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. The next morning, he had a surprise for the 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 error and state explicitly that here 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-marking is the habit of the race of devils [whites] . . . [and that Islam] forbids its members to carry arms of 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 Hugo Black, Byron White or Nixon's latest appointee, Harry Blackmun, the other members of the original majority. They were particularly distrubed 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 remainded 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.
Potter Stewart was particularly upset by this prospect. He proposed an alternative: the Court could simply set Ali free, citing a 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 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 unaminous unsigned opinion. 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.
The following term, on March 24, 19 72, Stewart found himself the senior member of a majority for the first time in his career. The case (Flood v. Kuhn) concerned Curt Flood, a former star outfielder for the St. Louis Cardinals, who had refused to be traded to the Philadelphia Phillies. He had filed an antitrust suit against professional baseball. Flood wanted to break the reserve clause that allowed teams to trade baseball players without their consent.
Oral argument had failed to clarify the issues. Former Justice Arthur Goldberg, in his first appearance before the Court since resigning in 1965 to become ambassador to the United Nations, had offered such a poor presentation of Flood's case that his former colleagues were embarrassed.
Lewis Powell, a new addition to the Court, withdrew from the case, because he held stock in Anheuser-Busch Inc., whose principal owner, August Busch, Jr., also owned the St. Louis Cardinals. The Chief, Douglas and Brennan voted for Flood, leaving Stewart to assign the opinion for a five-member majority.
Stewart thought that the opinion would be easy to write. The Court had twice before decided that baseball was exempt from the antitrust laws. There seemed little chance of losing the majority as long as the two earlier precedents were followed. He assigned the opinion to Blackmun.
Blackmun was delighted. He felt that he had suffered under the Chief, receiving for the most part poor opinions to write, including more than his share of tax and Indian cases. He thought that if the antitrust laws were applied to baseball, it's unique position as the national pastime would be undermined. A devote fan first of the Chicago Cubs and later the Minnesota Twins, he welcomed this chance to be one of the boys.
With his usual devotion to detail, Blackmun turned to the "Baseball Encyclopedia," which he kept on the shelf behind his desk. He set down miniumum life-time performance standards -- numbers of games played, lifetime batting averages or earned-run averages. He picked out representative stars from each of the teams, positions and decades of organized baseball. Then, closeted away in the justices' library, Blackmun wrote an opening section that was an ode to baseball. In three extended paragraphs, he traced the history of professional baseball. He continued with a list of "the many names, celebrated for one reason or another that have sparked the diamond and its environs and that have provided timber for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in season and off season: Ty Cobb, Babe Ruth. . . ." There were more than seventy names. "The list seems endless," Blackmun wrote. He paid homage to the verse "Casey at the Bat," and other baseball literature. When he had finished, Blackmun circulated his draft.
Brennan was surprised. He thought Blackmun had been in the library researching more important cases, not playing with baseball cards.
One of the clerks of William Rehnquist, another newcomer to the court, called Blackmun's chambers and joked that Camillo Pascual, a former Washington Senators pitcher, should have been included in the list of greats.
Blackmun's clerk phoned back the next day. "The justice recalls seeing Pascual pitch and remembers his fantastic curve ball. But he pulled out his encyclopedia and looked up his record. He decided Pascual's 174 wins were not enough. It is difficult to make these judgements of who to include but Justice Blackmun felt that Pascual is just not in the same category with Christy Mathewson's 373 wins. I hope you will understand."
Calling Blackmun's chambers to request that some favorite player be included became a new game for the clerks.
Stewart was embarrassed that he had assigned the opinion to Blackmun. He tried to nudge him into recognizing the inappropriateness of the opening section, jokingly telling him that he would go along with the opinion if Blackmun would add a member of Stewart's home-town team, the Cincinnati Reds.
Blackmun added a Red.
Marshall registered his protest. The list included no black baseball players. Blackmun explained that most of the players on his list retired before World War II. Blacks had been excluded from the major leagues until 1947.
That was the point exactly, Marshall replied.
Three black players were added -- Jackie Robinson, Roy Campanella and Satchel Paige.
Marshall decided to switch anyhow and write his own opinion in Flood's favor. The Court was now split 4 to 4, and word circulated that White was considering following Marshall. That would give him a majority.
White owed a great deal to professional sports. His career in football had paid for a first-rate education at Yale Law School. He remembered the years he spent touring the country playing football. In those days, teams were real teams, brotherhoods of young men. It was different now. There were too many prima donnas, he felt, concerned only with their own statistics. White had difficulty feeling sorry for Curt Flood, who had turned down a $100,000 annual salary.
The antitrust issues were not easy in the case. White thought that, if the federal laws did not apply, state antitrust laws might. His clerks used his hesitation to negotiate small changes in the Marshall opinion. White would probably join if the changes were made, one clerk offered.
When Marshall balked at a change that seemed trivial, his clerk protested that it was necessary to get White's vote.
"Says who?" Marshall asked.
A White Clerk, he was told.
"He'll never join," Marshall responded.
Finally, White indicated he would stay with Blackmun's opinion against Flood. But he flatly refused to join the section listing the baseball greats.
Blackmun ignored the insult. He still had only four votes. If the tie stood, no opinion would be published.
At the end of May, Powell's clerks made a last-ditch effort to get him back in the case. They knew that he favored Flood's position. Since he would be voting against the major leagues, he could not b accused of a conflict of interest, his clerks argued. He would only be hurting his own interests. It was in fact possible that he could be accused of conflict if he did not vote.
No, Powell told them. He was out and he would stay out.
The Court was still deadlocked in the last half of May. After all his work, it seemed that Blackmun was to be deprived of his opinion.
As the term drew to a close, Burger announced that he would switch to the Blackmun opinion in the Flood case, giving him the fifth vote. He too, however, initially declined to join the first section.
After the opinion had come down, a clerk asked Blackmun why he hadn't included Mel Ott, the famous New York Giant right fielder on his list of baseball greats.
Blackmun insisted that he had included Ott.
The clerk said that the name was not in the printed opinion.
Blackmun siad he would never forgive himself.
On Jan. 17, 1973, the Court heard oral arguments in a sex-discrimination case (Frontiero v. Richardson). Many such cases had been building in the lower courts as women challenged laws that discriminated against them.
In this case, a female Air Force lieutenant, Sharon Frontieor, had asked the Air Force for larger quarters and allowances of several hundred dollars a month because she had married. Under federal law, these increases were automatically granted to married men. But for a woman to qualify, she had to prove that her husband was legally dependent and that he received more than half his support from her.
In previous cases, the Court had declined to treat sex discrimination as it did race discrimination -- as virtually, unconstitutional in all cases. The term before, the Court had unanimously struck down and Idaho law that gave automatic preference to men over women as asministrators of estates (Reed v. Reed). But the decision, written by Burger, had held simply that states could not pass laws treating men and women differently unless some clear reason was given for doing so.
At Conference, Burger proposed that they handle the Air Force law exactly the same way. The liberals wanted to go further, but the Chief's proposal was acceptable. Only Rehnquist wanted to let the law stand.
Burger assigend the case to Brennan. He preferred not to give Brennan civil rights cases, but since they agreed on the reasoning this time, little harm seemed likely to come of it.
But as Brennan went to work on the Air Force case, his misgivings about the rationale grew. Maybe the time had come to treat sex discrimination cases the same way as race cases. The kind of discrimination that had been practiced against women over the years had many of the same characteristics of past treatment of blacks -- denials of the right to vote, to hold office, to service juries.
Brennan became convinced that a clear statement was needed. Yet, he did not want to offend the Conference. His mandate had been to write an opinion striking down a single law, not to make a broad constitutional rule.
Brennan circulated a draft opinion on the limited grounds, and then he sent around an alternative section that proposed a broad constitutional ban, declaring classification by sex virtually impermissible. He knew that his alternative would have the effect of enacting the Equal Rights Amendment, which had already passed Congress as was pending before the state legislatures. But Brennan was accustomed to having the Court out in front, leading any movement. There was no reason to wait several years for the states to ratify the amendment. This could be a landmark case if he could get four more votes. Douglas Marshall and White rapidly joined his alternative. Now, he needed only one more vote.
Powell realized Brennan saw him as the possible fifth vote. But he didn't like Brennan's draft, which read at times like a women's liberation tract, calling sex discrimination in statutes "romantic paternalism" that put "women not on a pedestal but in a cage. More imporantly, Powell was sensitive to the Equal Rights Amendment debate. With a proposed amendment before the state legislatures, the issue was clearly in the political arena. That was where it belonged. There was no need for a summary, unrestrained exercise of judicial power.
Powell circulated a short dissent to Brennan's sweeping version, trying to gather votes for the other side. Burger, Blackmun and Rehnquist joined him. That made it 4 to 4. Stewart would be the deciding vote.
Stewart felt caught between his two best friends on the Court, Powell and Brennan. Generally, he didn't like equal protection decisions. They were often a kind of judicial legislation. While he disagreed with Powell's suggestion that the pending amendment precluded Court action, he did see if as a problem. This was not a matter that needed to be settled immediately. The Court should move slowly.
Stewart indicated that he favored striking individual laws as they came up and, perhaps after a number of years, doing what Brennan proposed. It would be better for the dynamics of the law -- a slow evolution and then a clearly logical ultimate step. Besides, Stewart was certain the Equal Rights Amendment would be ratified. That would relieve the Court of the burden. The responsibility really should be assumed by legislatures.
With Brennan continuing to press him for his vote, Stewart proposed a compromise. If Brennan would go back to his first draft opinion and simply strike the one law, Stewart would probably go along with his broad constitutional rule on the next sex discrimination case. But it was important that Brennan not publish the alternative draft without his vote. If that happened, Stewart would be on record against him and it would be more difficult for Stewart to join a similar opinion in a year or two. He would look inconsistent. Outsiders might question his sudden conversion.
Brennan perceived Stewart's offer as a "deal." He rejected it and decided to publish the alternative draft, even though he had a plurality of only four. Stewart concurred simply in the part striking the one law.
Brennan felt certain that he had come within an inch of authoring a landmark ruling that would have made the Equal Rights Amendment unnecessary.
If either Earl Warren or Abe Fortas had still been on the Court, Brennan lamented to his clerks, he would have won.