Supreme Court Associate Justice Samuel A. Alito Jr. visited Duke Law for a week in late September. In addition to teaching a seminar titled Current Issues in Constitutional Interpretation to 15 second- and third-year students, Alito shared highlights and insights from his life and career with an overflow student audience during a Sept. 19 “Lives in the Law” conversation with Dean David F. Levi.
“A wonderful teacher”
Shifali Baliga ’14 and Conor Reardon ’14 praised Alito’s collaborative and conversational approach to guiding his students though complex questions of constitutional interpretation during the seven classes they had with him. An initial discussion of three distinct works on constitutional theory — Justice Antonin Scalia’s A Matter of Interpretation: Federal Courts and the Law, Justice Stephen Breyer’s Making Our Democracy Work: A Judge's View, and Judge J. Harvie Wilkinson III’s Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance — provided “a framework and foundation” for class discussions that followed, said Baliga.
“Most of our law school classes focus on cases, not foundational works as such,” she said. “To get to read and discuss these books and these theories was insightful.” The justice focused subsequent classes on specific themes such as Eighth Amendment and First Amendment cases, and the use of foreign law in U.S. courts.
“Classroom discussion centered around situating the opinions we read within broader constitutional theory, with plenty of talk about how the strengths and weaknesses of different approaches play out in particular cases,” said Reardon who, like Baliga, will begin a federal clerkship following his Duke Law graduation. “Justice Alito devoted himself chiefly to pointed questioning that pushed us to confront issues that transcend individual controversies: the proper role of theory in deciding constitutional questions, the capacity of various adjudicative approaches to cabin judicial discretion, the appropriate role of the judiciary in a representative democracy. In short, he taught the class like a law professor — and a very good one. I think each of the students left the course with, if not all the answers, a healthy appreciation for the weight and complexity of the questions.”
“The fact that Justice Alito gave us so much latitude to contribute to the class and to express our own thoughts was really interesting,” said Baliga. “I think he designed the course to help us explore and discover our own views. I had done that to some extent in my other classes, but this really forced me to think of my own theory of constitutional interpretation and provided a jump start to actually doing that.
“Justice Alito is a wonderful teacher, a wonderful professor,” she added, noting that he remembered each student’s name after their first class. “He really made an effort to get to know us. The experience as a whole was humbling. I never thought I would get to spend seven days with a Supreme Court justice.”
A distinguished life in law and public service
While students must apply to enroll in the weeklong seminar Alito has taught at Duke Law since 2009, his Sept. 19 conversation with the dean was open to all students, faculty, and staff. “The students read your opinions, but this is a chance for them to get to know you as a person,” said Levi in his welcoming remarks.
Alito noted his parents’ emphasis on education while he was growing up near Trenton, N.J.; both were trained as teachers. “They both were pretty poor growing up and I think saw education as the thing that had allowed them to advance. So they felt very strongly about it,” he said. His father, who left teaching to become the first staff researcher for the New Jersey state legislature and oversaw the growth of the office, kept a close watch over his children’s studies.
“Every time I had a paper of any kind due at school, he insisted that after I had written it and I was satisfied with it, that we would sit down at the kitchen table and we would go over it word by word, sentence by sentence,” Alito recalled. “And he would ask, ‘Why did you say this? Wouldn’t it be better to put it this way?’ and ‘Is this necessary?’ It was a very painful process that I would have spared myself if I had had the option at the time, but very valuable in retrospect.”
While his father’s work at the legislature and his participation in high school debate helped spark an early interest in law, Alito described himself as “a very unhappy law student” at Yale; he entered law school immediately after graduating from Princeton University’s Woodrow Wilson School of Public and International Affairs. “I really should have worked between college and law school,” he said. “That was done much less frequently in those days. But I had a few classmates who had worked, and I noticed that they were very happy law students. They loved it and they were enthusiastic and wanted to be there, and I was not in that category.”
That changed when he took a post-graduate clerkship with Judge Leonard Garth on the U.S. Court of Appeals for the Third Circuit.
“I loved that from the first day to the last day,” Alito said. “The cases were interesting, I thought it was satisfying work. I thought that if there was any possibility in the future that I could do this full time, that was kind of my dream. By the end of the clerkship, I thought I had learned everything I needed to know to be a judge. I thought I was ready to be appointed, but that wasn’t to be.”
Instead, he joined the U.S. Attorney’s Office in New Jersey, one of the few to have an appellate division. “That allowed me to continue to do appellate work, which is what I found so interesting.” Over three-and-a-half years he handled about 75 appeals before the Third Circuit, he said.
Alito’s next position within the U.S. Department of Justice was in the Solicitor General’s Office, giving him the opportunity to argue multiple cases before the U.S. Supreme Court. He said he enjoyed doing so. “But it’s like the old saying, ‘I enjoy having written.’ It’s very satisfying once you’ve done it, but it’s extremely nerve-wracking when you’re doing it, and the process of preparation is very, very, very intense. I took a lot of time to prepare every time that I argued.”
Alito then moved to the Office of Legal Counsel where he enjoyed the “difficult legal issues” he encountered in providing advice to the Attorney General and the executive branch. The move from a career Justice Department position to a political post was not part of a grander plan, he said.
“My whole career was not plotted out in advance. At each stage, it was sort of, ‘Here’s an opportunity. What do I want to do next?’ That’s how it fell into place.” That’s also how he became the U.S. attorney for the District of New Jersey two years later.
“I was the beneficiary, in a sense, from the fact that there was no Republican senator from New Jersey, either when I was appointed U.S. attorney or when I was appointed to the Court of Appeals,” he said. “There was no senator of the president’s party who could make a strong recommendation to the White House about who should fill either of those positions.”
Being U.S. attorney was “a great job,” Alito said. “It was completely different from what I did before and completely different from what I did after. All of my other jobs involved a lot of reading and writing and thinking, and not a whole lot of contact with people. But being a US attorney in charge of an office of 65 attorneys — and it’s now probably twice that — was a job of dealing with people and trying to make sure the office was moving in the right direction and we were devoting our resources to the right types of cases and dealing with the problems that would develop from time to time in investigations. Every day when I went into the office I really had no idea what I would be doing much of the time. It was fascinating.”
After three years, Alito landed his dream job when a vacancy came up unexpectedly on the Third Circuit, in New Jersey. Nominated by President George H. W. Bush, he served on the court for 15 years, with chambers in Newark.
“I found the cases fascinating,” he said. “That’s the crux of the work. I like appellate work. I like dealing with legal problems and I like writing opinions. I had great colleagues and I enjoyed working with them.”
Alito was nominated to the Supreme Court by President George W. Bush in October 2005 and confirmed in January 2006, after a long confirmation process he described as “surreal” and extremely public, particularly in contrast to the relative media obscurity of his work on the Third Circuit. Joining the Court mid-term meant that he went to work immediately, voting on a stay of execution on the day of his confirmation.
Reflections from the bench
In the course of his wide-ranging conversation with Levi, Alito explained his opposition — one shared by his Supreme Court colleagues — to having oral arguments televised. He recalled the arguments made by U.S. Solicitor General Donald Verrilli Jr. in support of the Patient Protection and Affordable Care Act during the last term of the Court.
Calling Verrilli a very good and skillful advocate, Alito noted that the solicitor general frequently argues before the Court and made three arguments on “Obamacare” in a week.
“To prepare for one argument is exhausting. To do three is Herculean,” said Alito. “So the solicitor general got up to argue during one of these arguments — it was not the first — and he had a bad 30 seconds. He was having trouble swallowing — he sipped [water] the wrong way. The argument was not televised, however contrary to our normal practice, we released the audio of this that afternoon. So that afternoon, C-SPAN broadcast the audio, along with still photos of the participants.
“Well, he recovered, he got his voice back, and he made a very good argument. It was one that I happened not to agree with, but he did a very good job of arguing the position the government had taken, as you would expect. Within hours of that, a television ad had been produced saying that ‘There’s no good argument that can be made in support of the constitutionality of the Affordable Care Act and here’s the illustration — we have the solicitor general of the United States, and he’s at a loss for words in trying to support this position.’
“This is an illustration of the way oral arguments can be used if they are televised,” said Alito.
Asked, by Levi, to reflect on the state of the American legal system, Alito first praised it.
“We do have a wonderful legal system,” he said. “If you look at legal systems around the world, and you look at how courts have operated through history, you get a sense of the really precious resource that I think we have in our legal system. Because it is a very honest system and it is populated by very, very talented and dedicated people. They don’t always do the right thing — I mean they don’t always decide cases the right cases the right way — but they are very dedicated to it.”
The justice expressed concern, however, over the relatively small number of civil cases being taken to trial. “I do think we have gotten to the point where trials are becoming rarer and rarer, almost to the point of extinction in some locations,” he said. “Civil trials [have] almost completely disappeared. They had become too expensive, so there’s pressure to settle everything. I think that’s bad. A legal system should have the capacity to try cases and a certain number of cases should actually be tried. And a number of cases are taken out of the civil system because of arbitration agreements.”
This is “not a good time” for judges, he added. “Judges are under attack from all sorts of quarters for all sorts of things. And I think it can go too far. If we get to the point of demoralizing the judiciary and discouraging good people from going into the judiciary at various levels, for whatever reason — just because they don’t feel that they’re respected or because the caseload is too heavy or they’re not given the resources that they think they need to do a good job, that will be a loss for the country.”
After eight years on the Supreme Court bench, his work remains satisfying, the justice said.
“Every once in a while, particularly if I walk across the main hall of the Court with its marble and columns — if I’m walking to the garage at night, when the lights are out — it hits me where I am and what I’m doing,” he said.