Justice is accidental (Part Three): Muhammad Ali and African American Supreme Court Law Clerks
By Professor Munyonzwe Hamalengwa
LET’S continue with my Thesis that Justice is accidental and injustice is deliberate. Today I wish to give an example of Muhammad Ali, the boxer and how he was accidentally served justice because of the presence of African American clerks in the Supreme Court of the United States. These clerks, African American Clerks were not always present in that Court. Let me put this issue in context.
In the strategy reminiscent of the civil rights struggles of the ‘50s and ‘60s, the National Association for the Advancement of Coloured People (NAACP) of the USA staged a demonstration outside the United States Supreme Court in Washington, DC on October 5th,1998. They were protesting the exclusion of African-Americans from the plum positions of law clerks to the Justices of the Supreme Court of the United States.
In a background study, it was discovered that Chief Justice Rehnquist, who had been on the courts ince 1973, had never hired an African-American as a law clerk. So was the most conservative Justice on that court, Justice Anton in Scalia. The lone African-American Justice, Clarence Thomas always sided with Scalia and or vice versa. Sometimes they were the only two dissenters and were always pro-state or pro-government on conservative issues and were mainly pro-business.
Most lawyers know of the importance of Supreme Court clerkship. The clerks are the gatekeepers to what cases the court will eventually hear. Cases require leave to be granted and the clerks are assigned to weeding out important from the non-important cases from their perspective. What is not important to a white upper class kid groomed for Wall Street practice, may be very important to an African-American law clerk from Harlem. A White upper class law clerk may not detect an error in law from a court below in a capital punishment case involving an African-American and may weed it out on that basis. An African-American may see a cobweb of systemic injustice and flag the case to continue.
If African Americans are excluded from clerking for the court, perforce they are excluded from the final legal determination of issues most important to the man and the manner in which these cases may be determined. Law clerks do the first research and do the first and sometimes final drafts. Some judges just do the finishing touches or cosmetic editorial work. What you read is largely the product of highly intelligent law clerks, the power brokers and power wielders of the future. They will continue in the future to design the world according to their own image.
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The importance of law clerks is exemplified in the case of Muhammad Ali. In relation to the criminal conviction, it was revealed in the book pictured that Muhammad Ali would never have overturned the conviction in the Supreme Court of the United States and he would never have been able to fight George Foreman and others, and he would never have had a second life and the accompanying modern acclaim, had it not been for the intervention of some African American law clerks at the Supreme Court of the United States. As already stated, law clerks are gatekeepers to the world of the Supreme Court. They vet cases. They screen cases for inclusion and exclusion. They influence judgments. There is a lot of literature on this. It is not a secret. I have some books on this.
After the case was argued and certification was granted for the case to go forward, five of eight Supreme Court Judges voted to affirm the conviction of 1967 and three dissented. Thurgood Marshall, the lone Black justice recused himself because he was Solicitor-General when Muhammad Ali was convicted.
As is customary, the Chief Justice, Warren Burger at the time, assigned a judge to write the majority opinion. He chose Justice John Harlan to write the majority opinion to uphold
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Muhammad Ali’s conviction. If the conviction was upheld, then Muhammad Ali would have been sent to jail for five years. This means as already stated that these condcoming of Muhammad Ali would never have happened. Those epic battles with Joe Frazer, Ken Norton and George Foreman would never have occurred. However, this time African American clerks, intervened. Justice Harlan’s clerks persuaded him to take home a copy of Elijah Muhammad’s book, Message to the Black man in America, to gauge for himself the Muslim teachings, especially in relation to the Muslim’s conscientious objection to fighting in wars. All along, the government had portrayed Ali as only opposed to the war in Vietnam and not to war in general. But that was a misinterpretation of the Muslim religion. All government lawyers and courts below had deliberately misapprehended this point. Injustice is deliberate.
When Justice Harlan read the book for himself, he reversed his earlier stand to uphold the conviction. The book made it clear that Muslims are opposed to war in general. After many fierce battles within the ranks of the Supreme Court justices, Justice Harlan prevailed. The credit should go to the law clerks, as well as to the Justice himself. Harlan had to convince his majority colleagues that they should not send Muhammad Ali to prison just because they were afraid of the political consequences of setting him free. If the clerks were pro-war or not in touch with their generation, Muhammad Ali would have been lost to history. The presence of African American clerks was accidental resulting in accidental justice.
Muhammad Ali had been a marked man and hated by the authorities. His colour did not help. On the parallel case of reclaiming his licence to fight, Muhammad Ali’s lawyers discovered that only Muhammad Ali had been stripped of his licence to fight because of a criminal conviction. The lawyers unearthed several hundreds of cases where murderers, rapists, crooks, bank robbers, etc. continued to fight in the face of conviction for serious criminal activity without having their licences taken away. The lawyers argued that Muhammad Ali was discriminated against, contrary to the 14thAmendment to the USA Constitution, which provides for equal treatment under the constitution. Thus Muhammad Ali could have continued to fight despite the conviction. The District Court in New York was persuaded to reinstate Muhammad Ali’s licence to fight as a result of this argument. The Supreme Court eventually disposed this case.
Chief Justice Rehnquist was a former law clerk at the Supreme Court, so have the majority of justices on the court, as well as judges of various Courts of Appeal, Deans of Law, law firms, at State Department, Capitol Hill, Wall Street and in industry. These individuals cannot design the law in the image of African-Americans. That is why that struggle was waged outside the Supreme Court of the USA on October 5th,1998.
