INTERCEPTING THE INTERCEPT

A Probable Hit-Piece on Justice Samuel Alito is Forthcoming

On Friday morning (September 27, 2024), I received a call from Shawn Musgrave, Senior Counsel/Correspondent for the Intercept. Frankly, the call caught me off guard, Shawn asked to speak with me about my experience, as a third-year law student, learning from Justice Samuel A. Alito, Jr. of the United States Supreme Court.

At first, the call seemed innocent. Shawn told me that he had spoken to other students who had attended the class (which I now seriously doubt) and asked me about how the class was taught, my overall experience, and the delegation of teaching duties as between Justice Alito and Regent Law’s then Dean, Chief Justice Mark D. Martin (NC Supreme Court, Retired).

I often get calls from the media, and I wanted to share how that class has been a significant blessing to my life, so I spoke with him briefly about the class and explained how it has positively impacted my experience as a practicing attorney. Shawn also asked me what materials we utilized for the class and, more specifically, what SCOTUS decisions we discussed. I told him that I do not recall what specific cases were covered, but I have that information in my class outline. The call ended civilly.

A short while after the call, I received a rather shocking email, in which Shawn made clear that the nature of his inquiry was not to write an objective article about the class but—rather—to write a hit piece on Justice Alito, Regent Law, and myself.

From his email, I was able to discern that Shawn is hell-bent on trying to tie Justice Alito and Regent Law to my work, especially in my election cases representing Abe Hamadeh. The probable angle for his article is, that because I was (wrongly) sanctioned by an Arizona superior court judge for allegedly filing a baseless lawsuit (even though the judge ignored the truth of the allegations in the complaint, which she had no discretion to do at the motion to dismiss stage, and did not substantively address any of my arguments in her ruling before claiming that the action was frivolous), Justice Alito and Regent Law are somehow trying to undermine elections (and democracy, more generally). This likely claim is solely predicated upon the work that one student (who hasn’t had any interaction with Justice Alito since January of 2020) is doing years after the fact. Objectively, this is an absurd contention; but it probably won’t stop Shawn from doing his best to make the tenuous argument.

I responded to Shawn’s email, sharing with him the various filings in Abe’s quo warranto appeal, which clearly demonstrate that the trial court erroneously found the action to be without merit. Any objective person reviewing the case documents can see that this case has legs, and I encourage all reading this post to look at the filings from the appeal and decide for yourself whether the lawsuit is baseless.

Shawn later replied to my responsive email, again asking for the materials from the class. Following Shawn’s follow-up email, after considering the interests of my family and my clients, I called Shawn on Friday afternoon and offered to share additional information with him, but only if I could do so off the record (i.e., if he would agree to leave myself and my clients out of his forthcoming article). He disagreed, and he again asked me for the class materials, which I declined to share.

Before Shawn publishes his hit piece, I want to set the record straight on what it was like to learn from Justice Alito and what information was generally covered during the class.

Generally, the class was a three day, in-person seminar (which took place in January of 2020) on the topic of Constitutional Interpretation. The class was taught jointly by Justice Alito and Chief Justice Martin. All attendees for the class were required to submit applications to Chief Justice Martin, and the application process was highly competitive. Ultimately, only sixteen students (fourteen third year law students and two second year law students) were chosen to participate (with one additional student, who was allowed to attend the class as an assistant to Chief Justice Martin). Most of the students chosen to participate were at the top of their classes (with respect to class rank) and most now hold highly respectable positions as attorneys (after having clerked for judges across the country). Moreover, many of the students that attended this class are destined to become judges themselves.

Put simply, I was the anomaly in the class. I was chosen not because of my class rank (which was still respectable, given that I landed just outside of the top third), but because of my substantial involvement in the law school community. For example, I was twice elected President of my class for the Student Bar Association (VP of that organization, generally), President of the Business Law Society, and I often was honored to help lead various events put on by Regent Law’s administration (notably, I received the “Community Changer Award” during my law school graduation, recognizing my “commitment to excellence and integrity by a selfless pursuit of public service and community involvement”).

Before the class started, the attendees were provided various documents (articles, SCOTUS decisions, and a book called: Cosmic Constitutional Theory, by Judge Harvie J. Wilkinson, III, which every practicing and aspiring attorney should read) to review so that we could each be prepared for an in-depth discussion.

On the first day of the class (which was held in a building near the Supreme Court), we opened by discussing whether Justices serving on the Supreme Court of the United States (and other courts, more generally) should have term limits. Rather than advocating for any point of view on this topic, the class discussion, which was led by Justice Alito and Chief Justice Martin, focused on the pros and cons of the various options. This practice, of Justice Alito and Chief Justice Martin not advocating for any position on the topics we discussed, was a constant theme throughout the experience. The class was clearly intended to foster critical thinking, and students were encouraged to formulate their own opinions. At no point did either Justice Alito or Chief Justice Martin advocate for any specific agendas (which I believe Shawn will falsely claim as true without any supporting evidence).

Next, the class discussed the topic of the power of Congress to Control the Jurisdiction of Article III (federal) courts, before discussing various ways that states (and the federal government) select judges and justices (and the pros and cons of the current approaches). On this point, I still clearly remember making Justice Alito laugh during this discussion when I facetiously proposed that, instead of the current system for selecting Justices for SCOTUS and the federal courts, we adopt an approach like the Hunger Games.

Following the introductory conversations about how our court systems function, and the pros and cons of the various approaches, we transitioned to the main point of the class: discussing the various methodological approaches that judges utilize when interpreting the Constitution of the United States and deciding cases, and we considered examples of cases decided by SCOTUS (and other courts) utilizing the various approaches so we could better understand them.  

Generally, there are three predominant methodological approaches to interpreting the United States Constitution.

First, is “originalism”¹—which generally accepts the original public understanding of the Constitution as the only legitimate source of constitutional interpretation.

Second, “living constitutionalism” is much less of a “methodological approach” and much more of an “the ends justify the means” approach. Practitioners of “living constitutionalism” generally claim that, if a constitutional decision can be framed in such a way as to be consistent with the current majoritarian understanding of a constitutional principle, then such a decision should govern because it is a triumph of the will of the people. The problem with this approach is that the preference of the majority of folks in our society often changes, so there aren’t any real principles guiding those who employ the “living constitutionalism” approach and decisions utilizing it are often inconsistent.

The final approach covered by the class is called “pragmatism”—which doesn’t require the jurist to follow any constitutional text or precedent. Instead, for a pragmatist, text and precedent are mere guidance for the decision, which generally focuses on the full extent of the future effects that the decision is likely to have and the jurist rules according to his or her best view of the outcome.

For each of the approaches to constitutional interpretation that we discussed, the class analyzed cases to understand how the approach works in practice. Again, neither Justice Alito nor Chief Justice Martin advocated that the students prefer any specific approach—the point of the class was to educate the students and let them make their own decisions on the merits of each. Furthermore, neither Justice Alito nor Chief Justice Martin expressed their viewpoints on controversial issues that have been litigated or those that might be litigated. The purpose of the class was merely to educate students on the ways in which constitutional cases are decided.

Contrary to what Shawn is likely to claim, this class was not an opportunity for Justice Alito, Chief Justice Martin, or Regent to indoctrinate students with any particular viewpoints. Indeed, doing so would have been difficult—given that the class lasted only a few days. Presumably, if Justice Alito wanted to indoctrinate anyone (and I don’t believe that he does), then he would likely focus on his Clerks, who each spend a year writing opinions with him, instead of students (like myself) with whom he only spends a few short days.

Still, today, there are many topics covered in the class that I disagree with Justice Alito on (ask my classmates, and they’ll tell you that I seldom agreed with any Professor). I am who I am, and I do the work that I do because God made me this way—not because I attended any specific class in law school.

In conclusion, I hope that the Intercept is objective in its forthcoming publication, but I highly doubt that it will be.

© 2024, The Gavel Project

1. Sometimes, this approach is called “textualism”—especially when the jurist focuses the meaning of the text of the constitutional provision in question at the time the text was authored, as opposed to focusing on the intent of the author.