Muhammad Ali's Greatest Fight on HBO
Please bear with me as I haven't done a book report or movie review since college:
It came out in 2013. I watched it again On Demand on Saturday. The name of the case was Cassius Marsellus Clay, Jr. (sic) also known as Muhammad Ali v. United States The Court overturned by an 8-0 majority a lower court decision which found him guilty of a felony for refusing to be inducted into the draft.
Here is where the case gets interesting. The original vote was 5-3 to uphold the lower court decision and Justice Harlan was assigned to write the opinion for the majority. To say history would have been very different if the conviction was upheld is a understatement. Justice Harlan asked one of his law clerks to write the opinion for him. The law clerk was sympathetic to Ali and believed in the sincerity of his conscientious objection to war. Instead of writing a brief in favor of upholding the conviction he wrote a brief in favor of overturning it. He cited a previous case where Jehovh's Witnesses were excluded from induction for the same reasons. At first Justice Harlan was apoplectic but after reading the brief he was persuaded by his young law clerk...
Here is where the story gets interesting... Harlan eventually gets the other Justices to agree with him. But the calculations they made were about politics as much as the law; make a political decision and then marshal the facts (the law) to support it as opposed to going wherever the law or facts lead you.
That really made me think of where we are now. What if Roe v Wade and/or Obergefell v. Hodges come before the Court?
The centrifugal forces that exist in our nation are already putting us at a breaking point. What would happen if SCOTUS rips away a woman's reproductive rights or a same sex couple's right to marry and all the benefits that accrue from it and invalidates existing same sex marriages. I shudder to think what would happen.
Aiito, Thomas, and Gorsuch are lost causes. I know John Roberts voted against Obergefell v. Hodges, but he doesn't strike me as a legal arsonist.
Hope not.
Even conservative courts while reluctant to expand rights are usually loathe to take them away.