Potential nominee profile: Thomas Lee
on Jan 20, 2017 at 1:13 pm
Thomas Lee has a storied pedigree in both his home state of Utah and the legal field. His father, Rex Lee, served as the U.S. solicitor general and the president of Brigham Young University. Lee’s brother, Mike, serves as a U.S. senator from Utah and is also on President Donald Trump’s list of potential Supreme Court nominees. If nominated and confirmed, Lee would be the court’s first Mormon justice.
Thomas Lee graduated from Brigham Young University and the University of Chicago Law School and went on to two clerkships: the first for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the 4th Circuit, and the second for Supreme Court Justice Clarence Thomas. After his Supreme Court clerkship, Lee worked in private practice before becoming a full-time professor at BYU’s law school. From 2004 until 2005, Lee served as a deputy assistant attorney general in the civil division of the U.S. Department of Justice, where he headed the department’s Federal Programs Branch, which defends federal agencies, federal statutes, and the president in high-profile cases. In 2010, Utah governor Gary Herbert appointed Lee to the state’s supreme court, where the 52-year-old now serves as the associate chief justice.
Like many conservative judges and scholars, Lee has indicated that judges should “seek a neutral understanding of the law on its own terms, and then apply it without respect to any preference for any particular result” without creating policies. In an interview with Attorney at Law Magazine, Lee suggested that the doctrine of originalism is the best way to achieve such a result. He explained that, although there may be “a tendency to think of textualism and originalism as politically conservative approaches to judging,” “[t]hey are not. They are evenhanded tools for deriving the meaning of the law as adopted by the legislature (in statutes) or the people (in the Constitution).” At the same time, however, he acknowledged that the “process of interpreting statutory and constitutional provisions is complex and nuanced. It is hardly a matter of robotic construction. Judges are real people with real-world experiences and backgrounds. We cannot expect them to erase their experiences and backgrounds from the mindset that informs their judicial decision-making.”
Lee is also a strong supporter of a doctrine known as corpus linguistics, which employs extensive databases cataloguing the use of words and phrases to determine their meaning in the legal context. In a 2016 article for the Yale Law Journal, Lee explained that the doctrine can be deployed as part of originalist efforts to determine what the text of the Constitution would have meant to the people who lived at the time it was adopted. Lee used the doctrine in the modern context in a 2015 concurring opinion to determine whether a state law’s reference to the discharge of a firearm means the firing of a single shot or instead the firing of all of the ammunition in a gun’s magazine.
In his six years on the Utah Supreme Court, Lee has not frequently been confronted with many of the hot-button issues near and dear to the hearts of conservatives. To the extent that he has weighed in on such issues, however, his opinions and votes often reflect his originalist approach to judging and suggest that he would be a solid conservative in the vein of Thomas and the late Justice Antonin Scalia.
In 2012, for example, Lee relied on the text and the meaning of the state’s constitution to revamp the test to determine the public’s power to legislate through ballot initiatives. A group of voters wanted to put an initiative relating to city employees on the ballot, but the city refused to accept it. The Utah Supreme Court cast aside the framework that it had previously used to evaluate whether an initiative could go on the ballot, explaining that it had “prompted some misgivings over the years. At the core of our concern,” Lee reasoned in his opinion for the court, “has been the difficulty of applying the test in our cases predictably and consistently.” Lee took care to emphasize that the new test that the court was creating did not work “a fundamental change in the ultimate breadth of the initiative power.” Instead, he stressed, the court intended to “clarify the law and to bring it in line with the text and original meaning of the Constitution.” In particular, Lee derided the “three-part balancing test” that state courts had previously used as part of their determination, observing that “the judicial evaluation of the propriety of an initiative is not a matter of balancing ‘policy elements’ or of engaging in a ‘policy-based line of reasoning.’”
Lee has consistently voted for the state and against inmates in death penalty cases, many of which presented complicated procedural questions. He has not addressed direct challenges to laws regulating abortion. But some of his writings in cases that touch on issues related to abortion at least suggest that he is opposed to abortion – even if they do not necessarily shed any light on whether he would vote to overturn Roe v. Wade. In 2011, Lee voted in favor of the parents of a stillborn child who brought a wrongful death lawsuit against the United States, alleging that the mother had received inadequate prenatal care from employees of the U.S. Public Health Service. The question before the court was whether Utah’s wrongful death statute, which allows parents to bring such a lawsuit for the “death or injury of a minor child,” applies to children who have not yet been born. Lee agreed with three other justices that it does. In a separate opinion, he noted that, if it did not, wrongdoers would be “better off killing a fetus in the womb (in which case they would escape liability) than to merely injure it (in which case they would be liable for the injuries or post-birth death of a fetus if it happens to be born alive).” And in a pair of related cases, Lee voted for the state in cases brought against a young mother and the man she hired to punch her in the abdomen, in the hope that it would end her pregnancy. In the case against the mother, the court ruled that paying the man to punch her and terminate her pregnancy did not constitute an abortion, for which the woman could not be held criminally responsible. In a concurring opinion, Lee pointed to the relationship between the state’s abortion law and its homicide law, characterizing them as “two different statutes criminalizing the killing of unborn children.”
During Lee’s time on the Utah Supreme Court, he has had only few cases dealing, albeit indirectly, with the rights of gun owners, and it is difficult to glean much about his position on the scope of the Second Amendment from those cases. The case most directly on point is Herland v. Izatt, a 2015 lawsuit against a gun owner who allowed an intoxicated woman to hold his loaded handgun. The woman then accidentally, but fatally, shot herself in the head. Lee joined the other members of his court in holding that the lawsuit could go forward. The court, in an opinion by Chief Justice Matthew Durrant, acknowledged that the “right to bear arms is enshrined in both the United States and Utah Constitutions. But with that right,” the court continued, “comes responsibilities,” and the state legislature has placed some restrictions on gun use and ownership – for example, by enacting a bar on supplying guns to children and people with mental illnesses. For that reason, the court concluded, gun owners have a duty “to exercise reasonable care in supplying their guns to intoxicated individuals.” However, the court cautioned, that duty “does not mean that” gun owners “will necessarily be liable for damages when those individuals injure themselves, because in most cases the intoxicated individual’s negligence will likely exceed that of the gun owner as a matter of comparative negligence.”
Like Scalia, Lee does not hesitate to criticize his colleagues on the court, even if they reach the same conclusions that he does. In Summum v. Pleasant Grove City, the court considered whether the religious liberty clause of the state’s constitution required a city to allow Summum, a religion established in 1975 based on teachings that predate ancient Egypt, to install a monument in a public park where a Ten Commandments monument had already stood for over 40 years. The majority ruled for the city, and Lee concurred in that conclusion, but he wrote separately to – among other things – criticize the majority’s analysis as “internally inconsistent and potentially confusing.”
The Constitution gives Congress power to regulate interstate commerce; the “dormant” or “negative” commerce clause is the idea that states cannot enact laws that discriminate against interstate commerce. In a 2015 dissent, Scalia described the concept of the “dormant” or “negative” commerce clause as a “judicial fraud,” contending that the “fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause.” Later that year, Lee wrote for the Utah Supreme Court in an opinion that rejected a challenge by satellite TV providers to a Utah tax program that provided a tax credit to cable TV companies but not to them. In a separate section, Lee specifically weighed in on the broader issue of the dormant commerce clause itself. He noted that the U.S. Supreme Court had “described its dormant Commerce Clause caselaw as a ‘quagmire,’” and he added that “[n]ot much has changed in the interim.” The Utah court, he explained, was “reluctant to extend dormant Commerce Clause precedent in new directions not yet endorsed by” the U.S. Supreme Court, especially when doing so here “would open a can of worms.” “If the courts are to embark on a constitutionally mandated journey limiting the longstanding police powers of state and local governments to regulate business,” he maintained, the U.S. Supreme Court should make that call.
Lee has taken a narrow view of the extent to which courts should defer to interpretations of a law or regulation by a government agency – a position that might be attractive to conservatives generally but may be less appealing to the new president. Specifically, he has written opinions for the Utah Supreme Court that decline to defer to an agency’s interpretation of the laws it administers, a doctrine known as “Chevron deference” in the federal system. Instead, Lee explained in 2014, the courts should have “the de novo prerogative of interpreting the law, unencumbered by any standard of agency deference.” “A key justification for Chevron deference to federal agencies,” he reasoned, “is national uniformity” – a concern that is “not implicated in our state system, in which we have a single line of appellate courts and thus no real prospect for a split of judicial authority.”
A few years later, the Utah Supreme Court (again, in an opinion written by Lee) similarly rejected Auer deference – the principle that courts should defer to an agency’s interpretation of its own regulations. The court instead concluded that the appropriate standard for reviewing an agency’s interpretation of its regulations “is a non-deferential one that” simply determines whether the interpretation is correct. “We are in as good a position as the agency to interpret the text of a regulation that carries the force of law. In fact,” the court continued, “we may be in a better position,” because the agency should not have both “the power to write the law and the power to authoritatively interpret it.” Such a power, the court concluded, “would be troubling,” if not a violation of the state constitution.
During his stint in academia, Lee also had what the Utah Supreme Court’s website describes as a “part-time appellate practice,” including at the U.S. Supreme Court. Lee represented Utah there in its 2002 battle over the 2000 census – specifically, the methodology, known as “hot-deck imputation,” that the U.S. Census Bureau used to fill in gaps or resolve uncertainties in its data. The bureau’s use of that methodology increased North Carolina’s population and decreased Utah’s, leading to a gain of one seat in Congress for North Carolina and the loss of one seat by Utah. Utah argued that the bureau’s use of hot-deck imputation violated both federal laws governing the census and the U.S. Constitution, and it sought an order that would require the bureau to change the official census results. The Supreme Court rejected the state’s challenge by a vote of 5-4.
Lee and his wife Kimberley have six children – only three fewer than Scalia, the justice Lee would succeed. Lee enjoys running, boating, snowboarding and basketball.
Andrew Hamm contributed to the legal research for this profile; thanks also go to Jason Manion for pointing me to Lee’s writings on agency deference and corpus linguistics.