A new HBO movie about Muhammad Ali's legal battle against the military draft sheds rare cinematic light on the inner workings of the Supreme Court.
Muhammad Ali’s Greatest Fight, set to debut on October 5, shows justices in 1971 scheming and lobbying each other over Ali's case, with Justice John Harlan II — played by Christopher Plummer — making a last-minute switch that had the effect of keeping Ali out of jail and allowing him to resume his legendary boxing career.
And it's all more or less accurate, says retired law school dean Thomas Krattenmaker, who clerked for Harlan that year and played a key role in changing the justice's mind.
"Plummer is Harlan," said Kratten­maker, who was consulted during the making of the film and has seen a rough cut. "He looks like him, sounds like him."
Krattenmaker said he made several suggestions to the director for the sake of accuracy, and many were followed. Informed by Krattenmaker that Harlan's whiskey of choice was Rebel Yell, the filmmakers made the substitution—even making sure that they showed a bottle with the label that was used in 1971.
In addition to Plummer, the star cast includes Frank Langella as Chief Justice Warren Burger, Fritz Weaver as Hugo Black, Danny Glover as Thurgood Marshall and Ed Begley Jr. as Harry Blackmun.
Their acting goes a long way toward avoiding the dismal fate of most Hollywood efforts to depict the U.S. Supreme Court on film or television.
Faced with the reality that the court is an institution where sending a memorandum passes for high drama, directors often hype it up with West Wing-style intensity and confrontation, leavened with scenes involving hot young law clerks. When CBS in 2002 launched a series titled “First Monday,” veteran advocate Carter Phillips of Sidley Austin watched it and famously called it "vomitous."
Some of the familiar story lines of the Burger Court era are trotted out in the HBO movie. Burger is seen as the pompous schemer who casts votes so he can control who writes the opinion. Byron White is the sharp-elbowed competitor on the court's basketball court. William Brennan is the amiable politician, sending his clerks out on reconnaissance missions to other chambers. William O. Douglas is the notorious skirt-chaser. Blackmun is the quivering, indecisive rookie. And Marshall is the justice who watches soap operas in the afternoon and is sometimes mistaken for an elevator operator.
And even though the clerks are portrayed with their 1970s clothes on, there is an obligatory fistfight between a liberal and a conservative clerk to spice things up.
Krattenmaker says no fists were flung during his year at the court, but most of the rest of the themes in the roughly 90-minute movie are accurate. Time Warner general counsel Paul Cappuccio, who clerked for justices Antonin Scalia and Anthony Kennedy in the late 1980s, has seen the movie and said he thinks it rings true in many respects.
The source for the Supreme Court narrative in Muhammad Ali's Greatest Fight is a chapter in a 2000 book of the same name by Howard Bingham and Max Wallace. Bingham is a photographer and long-time friend of Ali. That book in turn credits the 1979 book The Brethren by Bob Woodward and Scott Armstrong for many of the details.
Screenwriter Shawn Slovo said she also consulted Robert Schnakenberg's Secret Lives of the Supreme Court for personal details about the justices. "You can't just make stuff up," she said in an interview. "But you can't bore people, either."
Perhaps the film's biggest virtue is that it highlights Harlan, a somewhat forgotten justice who died not long after the court ruled in the Ali case. Viewed as a conservative, he is cited as a model justice by court members and scholars of all stripes, but is not widely known publicly.
JUSTICE REVERSES ITSELF ON ALI
Ali, a recent convert to Islam, sought conscientious-objector status when he was given 1A classification by the Selec­tive Service in 1966 — a time when the Vietnam War, and opposition to it, were building. Ali's application was rejected. On appeal, a U.S. Justice Department hearing officer recommended that Ali be given objector status. But a letter from the Justice Department countered the recommendation and the designation was denied, without explanation. Ali refused to step forward when he was called for the draft; he was convicted on draft-evasion charges and sentenced to five years in prison.
Intense controversy surrounded Ali's actions, and he was stripped of boxing privileges as his appeal continued in the courts. This part of the story is told in the movie with archival footage of Ali himself. No actor plays Ali. "Why portray Ali with an actor when he can tell the story himself?" screenwriter Slovo said. "It would have been very distracting."
The movie recounts how Brennan persuaded his colleagues to grant review of Ali's appeal, even though the court had turned down the case at an earlier stage. But even though four justices granted review, Ali's prospects of actually winning were bleak. Justices were persuaded that, because Muslims allegedly pledge to fight a holy war if commanded to by Allah, Ali did not meet the requirement for conscientious-objector status that he oppose all wars.
After a lackluster oral argument on behalf of Ali, the justices met in private and voted, 5-3, to let his conviction stand. (Marshall, who was solicitor general when Ali's case first arose, recused himself.) Burger assigned the opinion to Harlan.
In the movie, Harlan in turn asked his clerk to write a draft opinion against Ali. The clerk was a liberal, and he clashed with Harlan, ultimately writing a pro-Ali opinion and submitting his resignation.
That did not occur in reality, said Krattenmaker, who was not the clerk assigned to write the opinion. "I would have written it as Justice Harlan wanted it," said Krattenmaker, who retired as dean of College of William and Mary Marshall-Wythe School of Law in 1997. "No clerk ever confuses himself with being a justice."
But Krattenmaker did urge Harlan to read Elijah Muhammad's Message to the Black Man, which had convinced him—and ultimately persuaded Harlan—that Muslims in general, and Ali in particular, were for all practical purposes opposed to all war. Also influential was a 1955 case, Sicurella v. United States, which found that a Jehovah's Witness effectively opposed all war, even if the religion envisions the possibility of participating in a theocratic war or Armageddon.
Burger exploded at Harlan's switch, according to The Brethren and the movie. But if that was the end of the story, Ali would have still gone to jail. The vote was now 4-4—which would leave standing the lower court ruling against Ali, without a ruling.
But Brennan and Justice Potter Stew­art thought that outcome would damage the court. They began the internal campaign to persuade colleagues to switch their votes, and they latched onto a technical issue contained in the Sicurella ruling. One by one, the justices switched, and finally Burger did, too. The decision for the court in Clay v. United States was brief and unsigned, and did not contain language that could be read as a green light for widespread granting of objector status.
The movie is about courage shown by both Ali and the Supreme Court, says Slovo. "It was a way to portray Ali as a man with enormous integrity, incredibly inspiring," she said. "And it shows that the Supreme Court was able to respond to what was happening in America at that time—the new zeitgeist. They finally agreed that this wrong had to be made right."
Contact Tony Mauro at firstname.lastname@example.org.