The newest member of the Utah Supreme Court—Justice Thomas R. Lee—has been very active during the nearly two years since he was appointed by Gov. Gary Herbert. He has been an active questioner during oral arguments, has authored twenty-nine opinions (according to Westlaw), has continued to teach at Brigham Young University’s law school, and still manages to find time to coach in his sons’ basketball leagues. This high level of activity, however, has not transformed Justice Lee into a judicial activist. To the contrary, he remains committed to his longstanding belief that the “role of the judge is to say what the law is and not what it should be.”
Justice Lee arrived at the Supreme Court with a wealth of appellate experience. After graduating with high honors from the University of Chicago Law School in 1991, he clerked for Judge J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit, as well as for Justice Clarence Thomas of the United States Supreme Court. During the course of a career split between private practice and Brigham Young University, Justice Lee argued cases before numerous Federal Courts of Appeals and the United States Supreme Court.
Although much of his private practice and teaching centered on intellectual property, the case Justice Lee argued before the United States Supreme Court, Utah v. Evans, 536 U.S. 452 (2002), involved a constitutional challenge—based on the rarely litigated Census Clause—to the methodology used by the Census Bureau in conducting the 2000 Census (which, as you may recall, resulted in Utah’s loss of one congressional Representative to North Carolina). Justice Lee described his oral argument before the Supreme Court as both the most thrilling and the most intimidating experience of his professional career. During argument, all of the Justices—with the exception of his former boss Justice Thomas—peppered Justice Lee with questions about the statistical methods used by the Census Bureau, and under what circumstances those methods of data extrapolation were permissible. One line of questioning even revolved around what the Census Bureau could properly infer when pizza delivered to a particular house subsequently disappeared.
Reviewing the Evans argument online highlighted two things for me about Justice Lee. See Evans Oral Argument Transcript, available at http://www.oyez.org/cases/2000-2009/2001/2001_01_714. First, regardless of the area of law at issue, it is critical to appreciate the starting point of a particular right (for instance, whether it derives from the Census Clause, a statutory enactment, or the common law). Second, active oral arguments—even those involving unanticipated hypotheticals about pizza delivery—are ultimately much more helpful to the judges (and invigorating to the advocates) than those limited to a bland regurgitation of the briefing.
As to his experience on the Utah Supreme Court, Justice Lee praised the fabulous work environment and credited the other Justices for helping him acclimatize to the view from behind the bench. He described the current court as a group who take their jobs seriously, but thankfully themselves “not so much.” The resulting camaraderie has made it possible for the Justices to engage in meaningful debate about matters of great importance to Utah and to respond to the competing interpretations of the law presented in every case with agility. In a nutshell, it is this “give and take” with both the other Justices and the attorneys appearing before the court (as well as the high level of activity that necessarily results from taking this approach) that Justice Lee has come to enjoy so much over the past few years since his appointment.