Thomas Rex Lee

Early life, education, and career

Thomas Rex Lee was born in 1964 to parents Janet (née Griffin) and Rex Lee. He grew up in Arizona, Utah and Northern Virginia. His undergraduate studies took place at Brigham Young University (BYU), graduating summa cum laude in 1988 with a bachelor's degree in economics. Lee graduated from the University of Chicago Law School with high honors in 1991.

After receiving his law degree, Lee served as law clerk to J. Harvie Wilkinson, III of the United States Court of Appeals for the Fourth Circuit (1991–92). He the joined the firm of Kimball, Parr, Waddoups, Brown & Gee as an associate in 1992 before clerking for Clarence Thomas, Associate Justice of the United States Supreme Court, from 1994–95. He became a shareholder at Kimball, Parr, Waddoups, Brown & Gee in 1995, a position he would hold until 1997 when he left the firm to join the faculty of the J. Reuben Clark Law School at Brigham Young University. At the law school, Lee taught courses in Civil Procedure and Intellectual Property Law, and a seminar on the United States Supreme Court. He also served as Associate Dean and was named the Rex and Maureen Rawlinson Professor of Law. He remains a Distinguished Lecturer in Law at BYU.

While at the law school, Lee was of counsel at Howard, Phillips, & Andersen, handling intellectual property matters. He was counsel in many trademark infringement cases brought by or against automobile manufacturers such as General Motors and Ford Motor Company. He has also written multiple papers on the issues related to counting non-residents in the census with Lara J. Wolfson. Lee argued one case before the United States Supreme Court.

Lee was Deputy Assistant Attorney General in the Civil Division of the United States Justice Department from 2004–2005. In 2002–2004 he served as the lead counsel in cases brought by the state of Utah in relation to plans to put nuclear waste on the Gosuite Indian Reservation. In 2004-05, Lee took a leave from the law school to serve as the Deputy Assistant Attorney General, Civil Division, U.S. Justice Department.

Nomination and confirmation

On May 28, 2010, Utah Governor Gary Herbert nominated Lee to fill the vacancy in the Utah Supreme Court left by retired Justice Michael J. Wilkins. Receiving a unanimous vote (5-0) from the Utah Senate Judicial Confirmation Committee, Lee was confirmed by the full Senate on June 23, 2010. Lee was sworn into office on July 19, 2010; his mentor, U.S. Supreme Court Justice Clarence Thomas, administered the oath.

Similarities to Justices Scalia and Thomas

A 2016 paper written by Jeremy Kidd of the Mercer University Walter F. George School of Law and others attempted to measure the "Scalia-ness" of various potential nominees to the Supreme Court to fill the seat left vacant by Justice Antonin Scalia's death. The study created a "Scalia Index Score" combining the various measures of "Scalia-ness," and Lee scored highest. The study found that Lee was the most likely to endorse or engage in originalism in judicial opinions, was second most likely to cite Scalia's non-judicial writings in opinions, and the third most likely to write separately when not writing the majority opinion.

In a 2016 article, Professor John McGinnis of the Northwestern University School of Law argued that Lee was similar to Scalia in being "capable of pressing the intellectual case for following the Constitution as written" because of Lee "has pioneered the application of corpus linguistics to law," and further wrote that if elevated to the U.S. Supreme Court, "Lee would create a transmission belt from the best work of originalists in the academy to the Supreme Court."

Hannah Clayson Smith, writing in the National Review, praised Lee as a possible successor to Scalia because of Lee's similar jurisprudential style to the late Justice, but noted that with respect to Lee's views on judicial precedent, "Justice Lee is more like Justice Thomas than like Justice Scalia." Smith noted that Lee (like Thomas) has repeatedly advocated for overruling precedent that he views as "contrary to the original meaning of the Utah constitution," even if precedent takes a different approach.

Authorship of opinions

Lee is a prolific judicial writer. An empirical study of Utah Supreme Court opinions by political scientist Adam Brown found that in the approximately first three years on the court, Lee authored more opinions than any other justice over the 16-year period studied, writing some form of opinion (whether majority, dissenting, or concurring) in 43% of the opinions published while he was a justice.

"Whereas some justices release a concurring or dissenting opinion in only a handful of cases that they hear," Lee is a prolific writer of such opinions, releasing them in around 16% of the Court's opinions. Of the ten Utah Supreme justices who served on the court from 1997 to 2012, Lee has the second-highest rate of dissent, filing dissenting opinions in 10% of cases over this time period. (The justice with the highest dissent rate was I. Daniel Stewart, who dissented 11% of the time). Lee also authored the highest proportion of majority opinions of the court (27%); Brown wrote that "[g]iven that Lee dissents relatively frequently, it is remarkable that he is also the most common author of majority opinions. His willingness to dissent has apparently not alienated his colleagues."

Notable work as an attorney

Guantanamo Bay Detainee cases (D. D.C.):

A series of suits filed against then President George W. Bush and the United States military regarding detainees held at the United States penitentiary facility at Guantanamo Bay, Cuba. The plaintiffs argued that in addition to being denied due process, prisoners ought to be subject to the laws under the Constitution, not military tribunals. Lee presented oral arguments on behalf of the United States. The majority of the rulings considered by the United States Supreme Court resulted in rulings that detainees should be able to file their complaints in civil courts.

Skull Valley Band of Goshute Indians v. Leavitt, 376 F. 3d 1223 (10th Cir. 2004)

Case involving the transportation and storage of spent nuclear fuel on land leased to the State of Utah by the Skull Valley Band of Goshute Indians. As part of the appeal, Lee served as lead counsel for the State of Utah. The resulting opinion of the appellate court was to affirm the district court's ruling that it was the authority of the federal, not state, government that decided issues regarding the transportation and storage of spent nuclear fuel.

Bullcreek v. Nuclear Regulatory Commission, 359 F. 3d 536 (D.C. Cir. 2004)

Case of appeal involving the jurisdiction of the Nuclear Regulatory Commission (NRC) in licensing the private storage of spent nuclear fuel. Lee argued on behalf of the petitioners who claimed that the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101, repealed the authority of the NRC to grant licenses to store private nuclear spent fuel in facilities away from reactor storage facilities. The circuit court upheld that the NRC's interpretation of the act was more consistent, and therefore denied the motions of the petitioners for lack of standing.

Utah v. Evans, 536 U.S. 452 (2002)

Case regarding the "hot-deck imputation" technique utilized by the US Census Bureau during the 2000 Census. The technique came under fire when it was shown to have earned North Carolina one additional representative, yet cost Utah one representative. Representing the State of Utah, Lee argued the case before the Supreme Court. The opinion of the court upheld the previous ruling that the use of "hot-deck imputation" did not violate statute nor constitution.

As a private attorney, Lee was a recognized expert in trademark law and litigated numerous trademark infringement cases, including the following:

Personal life

Thomas Rex Lee and wife Kimberly have six children. His brother, Michael S. Lee, is a U.S. Senator representing the state of Utah.