My title sounds like an old Johnny Carson "Carnac the Magnificent" or even a complex Jeopardy game show query....but please hang with me. I told my Sports Law class at Penn on Wednesday that the vote by NBA owners on whether or not to vote for Donald Sterling to sell his interest in the Los Angeles Clippers was very similar to a famous Supreme Court case involving Muhammad Ali, Clay vs. United States. In the case Ali was battling to stay out of prison for his refusal to be drafted and fight in the Vietnam War. His key argument was that he, as a member of the Nation of Islam, would not fight in any war other than a holy war. He proclaimed himself a conscientious objector. The Supreme Court justices disagreed. Their logic was, apparently, if you'd fight in a holy war why not the Vietnam War? As Bob Woodward recounts in his book The Brethren, the preliminary vote against Ali was 5-3 in favor of sending him to prison for his unwillingness to be drafted and fight in the Vietnam War. (Justice Thurgood Marshall had to recuse himself as he had been U.S. Solicitor General when the case first emerged).
The writing of the opinion was assigned to Justice John Marshall Harlan. One of his clerks assigned to work on the opinion decided to read The Autobiography of Malcolm X and a key work describing the Nation of Islam, The Message to the Black Man. After doing so, as Woodward writes that:
"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...."
The clerk then convinced Justice Harlan to read the materials he prepared and, stunningly, Harlan changed his vote, it was then 4-4. However, were that to be the final vote Ali would still go to prison, and the lower court opinion would stand. Procedurally in that situation the Court would not issue an opinion. Woodward highlights how unfair some of the Justices felt that would be to Ali. This was especially the case for Justice Potter Stewart. Justice Stewart then, as The Brethren recounts, determined that the Court could actually free Ali by pointing to a technical error by the Justice Department. All of the Justices, except for one, then moved to vote in Ali's favor. The one, Woodward writes, was Chief Justice Warren Burger. This is where the relevance to the upcoming owner's vote on Sterling's ownership comes. These owners are by no means the Supreme Court, but human nature on race displayed decades back certainly applies to powerful men today.
Woodward writes, "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." I don't know about the patronizing latter statement, but I do know that, particularly with the label slapped on Sterling and the events that followed, no NBA owner wants to be tagged the outlier racist. Even if the vote is taken in confidence, as Sterling learned as well, nothing is for certain secret.
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