The Ken Burns film on the life of the boxer Muhammed Ali, which ran on PBS a few weeks ago, returns time and again to Ali’s battle with the federal government to stay out of the Vietnam War. Drafted into the United States Army, Ali refused induction, claiming that as a Muslim he was opposed to all wars save those declared by Allah or his prophet. A trial court in Houston Texas rejected Ali’s claim to be a conscientious objector, found him guilty, and sentenced him to five years in prison. The intermediate appellate court upheld the conviction. The United States Supreme Court took the case and ultimately reversed the conviction.^[1]

The issue in the case was whether Ali had a religious objection to all wars, which would have exempted him from the draft, or a political objection to this particular war, which would not. As Burns’ film shows, the Court’s initial straw poll showed five votes to uphold the conviction. However, upon reflection, Justice Harlan changed his mind, believing that Ali’s case was analogous to previous litigation involving Jehovah’s Witnesses, who were granted conscientious objector status. There was still a complication. Justice Marshall had recused himself from the case; he had been the Solicitor General of the United States, and hence a Justice Department official, when the Justice Department filed the case against Ali, and he was a member of the NAACP, which officially supported Ali. Hence there were only eight votes, and the four-four tie created by Justice Harlan’s change of mind would still affirm the conviction. But then Justice Stewart noticed that the trial court had not stated the basis for the conviction – the government had alleged three – and had also acknowledged that Ali’s objections were sincere. If, Stewart argued, the court hasn’t told Ali the basis for the conviction, and if the government admits that he is sincere in his religious objections, hasn’t he been denied due process? If someone gets sent to prison, doesn’t the Constitution require that he be told why? Justice Stewart’s opinion, written on that narrow basis and saying nothing about whether Ali was legally entitled to a draft exemption, got all eight votes, and reversed the conviction. Ali was free.

 It’s a basic premise of jurisprudence that court should decide cases on the narrowest possible ground. Take advantage of the procedural or case-specific grounds to decide a case if possible, and leave the broad policy or philosophical pronouncements for the rare case when they can’t be avoided. There are sound reasons for this, especially when it comes to constitutional questions. The United States Constitution is virtually impossible to amend, and so the nation is stuck with a decision on constitutional grounds forever, or at least until the Supreme Court finds a way to admit it was wrong.

The Ali case, however, reveals something even more interesting about the Court. That it was able to flip from five votes to send Ali to prison to a unanimous decision setting him free indicates that members of that initial five-member majority were bothered by the result, but only with Justice Stewart’s (or, more likely, his law clerk’s) close reading of the record saw a way out of it. There were probably five different reasons why the five justices changed their votes, but I suspect that at least some of them thought Ali’s conviction legally sustainable but morally objectionable. If they had viewed it simply as a matter of due process, they could have sent the case back to the trial court for clarification of the basis of the court’s judgment. But they didn’t; they vacated the conviction. Seemingly, they appealed, consciously or otherwise, to a sense of “higher law.”

The concept of higher law has plagued Western jurisprudence for centuries. For most of our history, there has been an assumption that there is a “higher law” perhaps but not necessarily theological, that stands as the basis for human law. (That obviously leads to a confusing hierarchy, and some have pointed out that “deeper law” might be a better description of law’s foundations than “higher” law.”) Even Justice Douglas, perhaps the most liberal Justice in the history of the Court, once said that a the United States is a “religious people whose institutions presuppose a Supreme Being.” In the 20^th Century, the country, led by Justice Holmes, took a serious detour into “legal realism,” which held that laws are nothing but a political act, and there was neither higher law nor fundamental rights, save those granted by man-made law.^[2] Today, however, none but perhaps a few aging law professors seem to believe that.

The concept of higher law bears remembering, because it will peek its head out, or hide in the bushes, in one or more SCOTUS decision this term. Perhaps even more importantly, it will be the foundation of public dispute about the court’s decisions. Take for example, the abortion debate. The Court will hear a challenge to the Mississippi abortion law, even while challenges to the infamous Texas “abortion bounty” law make their way to the Court’s attention. The abortion debate, although carried out in the courts, is entirely couched in terms of higher law. Pro-choicers point to Roe v. Wade, which held that a constitutional “right to privacy” gives a woman complete agency over the decision to abort a pregnancy.^[3] Pro-lifers, on the other hand, “point to the sanctify of life” as grounds for a state’s limiting access to abortions, and a basis for overturning Roe. The problem is that the United States Constitution, the basis for the Roe opinion, says nothing about a “right to privacy,” nor, for that matter, about the “sanctity of life.” The right to privacy is a Court-made right, announced in the Griswold v. Connecticut case, which invalidated a state statute limiting access to contraceptives. (Needless to say, the Constitution says nothing about abortion, or contraceptives, either. In fact, Justice White, who wrote the crucial concurring opinion in Griswold, dissented in Roe, saying that he did not believe the right to privacy could be used to decide the mother’s rights versus those of the unborn child). On the other hand, there is no mention in the Constitution of the “sanctify of life” either. In fact, by saying that the government cannot deny a person of “life, liberty, or property” without due process of law, the Constitution suggests that life is something less than inviolable. 

To put it another way, both pro-lifers and pro-choicers appeal to a higher, or perhaps a deeper, law, which is then couched in legal terms. Pro-choice advocates are cast as endorsing an absolute right of self-determination, which sounds like a philosophical right to do whatever one wants so long as it doesn’t harm someone else. (This, of course, is also at the heart of the argument over vaccine mandates.) Abortion opponents, on the other hand, are said to rely on a religious belief that all life is a gift from God and must be afforded legal protection.^[4] In fact, the battlelines are much less clearly drawn than we are led to believe. President Joe Biden is both firmly pro-choice and devoutly Catholic, and the devoutly atheist Christopher Hitchens said that he thought the pro-life side had the better of the philosophical argument, albeit on secular grounds.^[5] Those are questions that SCOTUS cannot and should not attempt to resolve. Nevertheless, this is the storm into which SCOTUS sails.

This is not simply an abortion question. The Court this term will hear arguments about the right to bear arms, which ultimately depend on how far an 18^th Century guarantee of an organized militia ensures a 21^st Century individual right to carry an assault weapon; about affirmative action, which ask whether the post-Civil War anti-slavery amendments protect other ethnic minorities or even members of an ethnic majority regardless of disadvantage; and campaign finance laws, which hang or fall on the question of whether spending money is First Amendment “speech.” Reading the Constitution closely will answer none of these questions. There is the Scalia approach in his Casey^[6] dissent, which is to say that if the Constitution doesn’t mention it (as with abortion), the Constitution is irrelevant to the question, which become essentially a political one. Take that road, however, and you walk back decisions guaranteeing a parent’s right to raise his or her child (not to mention the Brown v Board of Education invalidation of “separate but equal” segregated schools.) Or you can take the Justice Kennedy approach, also from Casey, that while questions of higher meaning exist, they are for each of us to decide for ourselves – the right to be philosophically obtuse, one might call it.

There is no easy solution to this problem. When Justice Barrett complains of the Court being viewed as political hacks, she ignores both the intensely political nature of the questions before the correct, and the hyper-political nature of the nomination process. (Ask Attorney General Garland about that). And when various justices, such as the Chief Justice, protest that they act as judges, not legislators or philosophers, they ignore how most of the high-profile cases the Court decides this term will depend on language found nowhere in the Constitution itself, not to mention how the Court has turned the Constitution into a quasi-scriptural body of higher law. But if the Court’s actions seem confusing, it might help to think about our own battle between political reality and philosophical preference, and then multiply that conflict by 9.^[7]

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^[1] This is a simplified summary of the procedural history of the case. The United States Supreme Court actually reviewed the case twice, the first time sending it back down for further proceedings. 

^[2] This led, among other embarrassments, to Justice Holmes infamous opinion upholding Alabama’s law authorizing forced sterilization of the mentally disabled, with his chilling line “three generations of imbeciles is enough.”

^[3] Although, mysteriously, the Court then went on to hold that this complete agency is not complete, and could be limited, in the third trimester.

^[4] In actuality, the battlelines are not so clear. Just do an internet search for “pro-choice Catholic” or “pro-life atheist” to see.

^[5] My own views are both mixed and irrelevant.

^[6] Casey v. Pennsylvania, a 1992 SCOTUS case, essentially reaffirmed Roe v. Wade, although there was no firm majority for the reasoning why Roeshould be upheld.

^[7] I must confess some bias here. My first job as a lawyer was a one-year clerkship for the Texas Supreme Court. I remember the mild disdain with which the members of that Court viewed the United States Supreme Court, which they referred to as the “court in the sky.” That phrase expressed a combination of resentment that state Supreme Courts are every bit as supreme as the court in Washington, except in a different jurisdiction, and a substantially warranted feeling that state courts do most of the heavy lifting in cases that impact everyday lives and broader areas of law. Federal courts, for instance, have virtually nothing to do with divorce, child custody, property rights, or personal injury law. Yet it is the United States Supreme Court that hogs the headlines. More than anywhere, this is where the temptation to act as the “court in the sky” comes from.