Alito will guide 15 upper-year students through an examination of various challenging — and often controversial — issues that have arisen in recent Supreme Court cases. Among these are issues relating to the Second Amendment right to keep and bear arms, the Sixth Amendment rights to counsel and trial by jury, the Eighth Amendment right to be free of cruel and unusual punishment, and the right to petition for a writ of habeas corpus. He will use recent landmark cases as District of Columbia v. Heller and Kennedy v. Louisiana, among others, as vehicles for considering broader questions of constitutional interpretation and Supreme Court practice.
“I thought back over the cases that the Court has heard during my time on the Court and tried to identify some cases that would be interesting in themselves and involve interesting substantive issues and some broader questions like stare decisis and how you go about interpreting the Constitution when there is not a great body of precedent on the question,” Alito said in an interview.
In addition to their majority and dissenting opinions, Alito will use some of his colleagues’ writings on constitutional interpretation as springboards for discussion; assigned readings for the first class include excerpts from A Matter of Interpretation — Federal Courts and the Law by Associate Justice Antonin Scalia and Active Liberty — Interpreting Our Democratic Constitution, by Associate Justice Stephen Breyer. In addition to offering “extremely well-argued” and very different theories, the works are the only general explanations of constitutional interpretation offered by current members of the Court other than opinions, observed Alito.
“They’re not the only two theories that you could adopt, obviously, but they’re very different and I think they provide a good contrast and jumping-off point for discussion about how you should go about interpreting the Constitution and statutes,” he said.
Alito, who has taught regularly since he first became a federal appeals court judge, says his teaching style is to ask questions, rather than to deliver lectures, and that he tries to keep his personal views out of the classroom.
“I don’t try to convince students to view any of these issues in any particular way,” he said. “I want them to think through these problems and make good arguments for whatever position they favor. If all the discussion is going in one direction, I’ll try to raise the arguments on the other side.
“When students are discussing a case in which I have written an opinion or when I was sitting on the Court, they know what I ultimately thought about [the issue]. I think sometimes in the past they’ve been a little reluctant to say, ‘Well, I think you were completely wrong,’” he added. “But after a little bit, if I sense that’s going on, I’ll try to highlight the arguments against the position I took.”
His students are looking forward to the challenge. “I can't imagine that any law student wouldn't want to take advantage of the rare opportunity to gain insight on constitutional interpretation from a sitting Supreme Court justice,” said Lisa Hoppenjans ’10. “The cases we've been assigned cover issues that were not only before the Court very recently, but that will likely return to the Court in the near future.”
For Tobias Coleman ’10, Alito’s seminar offers a unique opportunity to gain insight into how judges’ minds work. “That something I’ve been fascinated with since I covered the courts as a newspaper reporter,” said Coleman.
Dean David F. Levi, who worked with Alito several years ago when they both served as chairs of federal rules committees, is delighted that the justice accepted his invitation to return to Duke Law School where he judged the final round of the Dean’s Cup Moot Court Competition in 2008.
“This will be a unique experience for our students and we are grateful that he has made time to come,” said Levi. “I know he is committed to this class. He has developed a syllabus that is challenging and will expose students to some of the most interesting cases the Court recently has decided.”
Alito’s seminar builds on the Law School’s strength in constitutional law and public law and its growing strength in appellate litigation. Related courses from Fall 2009 include Supreme Court Litigation, taught by former U.S. Deputy Solicitor General Donald Ayer and the Appellate Litigation Clinic, taught by Professor James Coleman and Senior Lecturing Fellow Sean Andrussier.