At Seton Hall, Professor Alito Wore a Cloak of Inscrutability

Alito taught often as an adjunct at Seton Hall, which former dean Ronald J. Riccio called "a window onto him -- he did it because he wanted to help young people. If he was paid anything, it was minimal."

The syllabus in the terrorism course spanned landmark cases of presidential power in wartime from the Civil War to the present, including the widely denounced Korematsu decision upholding internments of Japanese Americans during World War II and recent rulings finding the Bush administration in violation of the Constitution for holding American citizens Yaser Esam Hamdi and Jose Padilla as enemy combatants.

"He would ask questions, in the case of the Patriot Act, like: Did the government have the authority to assume these powers? Even if they have the power, have they done so in a fashion that is overly broad and exceeded their constitutional powers?" Marasco recalled.

Alito also guided his students to one of the central constitutional questions about what the Bush administration has called the global war on terror. Bush has argued that the battlefield in this war spans the world. Students who saved their notes said Alito asked questions such as "Where is the battlefield? Afghanistan? America?" And: "When does the war end?"

Legal scholars point out that courts have deferred to the executive in wartime, but the deference ended when the wars did. A "war on terror," by contrast, is open-ended. As a result it may ultimately be up to the Supreme Court -- and a Justice Alito, if he is confirmed -- to end the war in terms of the status of constitutional rights.

"Obviously the Supreme Court will have to come up with rules that define when we go back to the normal legal requirements, especially about due process," said Ronald Chen, associate dean for academic affairs at Rutgers Law School, who has represented civil liberties plaintiffs in cases after Sept. 11.

The Supreme Court has already begun the process. Justice Sandra Day O'Connor, whom Alito would replace if confirmed, wrote of the Hamdi case: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Although Alito kept his opinions to himself, his students emerged with their own perspectives. Pirone said she saw some parallels between certain civil liberties issues today and the World War II internment of Japanese Americans based on race alone. As Alito pointed out, the Supreme Court deferred to then-President Franklin D. Roosevelt and upheld the internments as constitutional.

"Can we be that quick to criticize Korematsu when we have the Patriot Act chipping away at our civil liberties?" Pirone asked. "You wonder if we'll adapt differently this time. The lesson for me was that in times of crisis, the courts and the other two branches have to sort it out, with not a lot to go on. The more things change, the more they remain the same."