Samuel Alito’s draft opinion in Dobbs took decades of precedent, some clumsily bad pseudo-history, and analytical inspiration from a legal theorist ranting about witchcraft and it’s still almost certainly going to become the law of the land in coming weeks. It also built the foundation for future assaults on marriage equality, contraception, and even school desegregation by enshrining the novel principle that anything not “deeply rooted in this nation’s history” is up for grabs. And while there are aloof op-eds about how there’s no chance the Court will go any further than Roe, these are the same clutch of folks who said “Roe v. Wade isn’t going anywhere,” so maybe it’s time to just go ahead and take what the justices are saying at face value.
Duke Law School continues to employ Alito as a Visiting Professor of Law. In a normal world, a Supreme Court justice would make for an interesting law professor. In a world where Alito’s burning stare decisis to the ground on the back of this level of slipshod reasoning — because, make no mistake, there are some dubious but at least clever paths to dismantling Roe and this opinion offers zero of them — it really makes you wonder what academic value the school gets out of this arrangement.
But students get to network with a powerful person so… it’s all good, I guess.
A lot of Duke folks don’t think it’s all good. A collection of Duke Law students and alumni have written an open letter asking the school to terminate the Alito relationship in order to salvage the school’s reputation:
Duke Law taught us the critical role of the Supreme Court as a branch of government that stood separate and apart from fickle political whims. The draft Supreme Court opinion indicates that this Court has failed in its mandate to remain politically impartial. Instead, it stands poised to overturn half a century of established constitutional precedent and undermine its own credibility by releasing a judgment steeped in political bias. We echo the Court’s own warning that “overruling Roe‘s central holding . . . would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” Planned Parenthood v. Casey, 505 U.S. 833, 836 (1992).
The letter also notes that some of Duke’s T14 peers are issuing statements denouncing the assault on the rule of law while Duke is shrugging and handing Alito $15 grand every year (as of the 2020 financial disclosures). And while this draft opinion is obviously momentous, it’s not like Alito’s career up to this point provided much to suggest he’s some kind of deep legal thinker. He made equally sophomoric arguments while throwing out four decades’ worth of labor precedent and it’s impossible to forget his petulant “not true” during the State of the Union after Obama pointed out that the Supreme Court had trashed nearly a century of precedent in Citizens United despite the fact that, regardless of what you think about the opinion, it was demonstrably quite true that the Supreme Court had trashed nearly a century of precedent in Citizens United.
If the school does part ways with the justice, it will draw a firestorm of “cancel culture” whining from right-wing media outlets. That’s probably weighing upon decision-makers within the program right now, though it shouldn’t. Because, to paraphrase the guy who gave Alito this job, that’s letting the terrorists win. The caterwauling will erupt no matter what, and then it will disappear as quickly as it arrived as soon as they decide some Yale Law student didn’t get expelled for swiping left on a FedSoc kid’s profile.
Weigh the merits here and ask if there’s any justification for keeping some 3L seminar taught by a guy who can’t be bothered to perform basic factual and legal research — or he performs it and then actively ignores it, which actually might be worse as an ethical matter — in his mission to transform the law to be openly hostile to a number of Duke Law’s students.
Sometimes, there are consequences to actions. Alito decided that an opinion unmoored from sound legal reasoning was worth it for his political ambitions. That’s his decision, but a law school doesn’t have to ram its head in the sand and keep treating him as a scholar when he does it.
You can check out the whole letter on the next page.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.