Kevin Daley, DCNF
A panel of legal scholars has identified Utah Supreme Court Justice Thomas Lee as the candidate on President-elect Donald Trump’s list of potential Supreme Court nominees most like the late Justice Antonin Scalia.
The four-person group produced a paper called “Searching for Justice Scalia: Measuring The ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court,” which measured key characteristics to determine which candidates are most likely to exhibit Scalia’s jurisprudence and style.
“If one is serious about replacing Justice Scalia with a jurist like him, one should care more about how a potential replacement reached a decision, which will illuminate how a judge approaches the law,” the authors write. “This, in turn, will provide a far clearer window into how that judge would behave when elevated to the Supreme Court, and, ironically, the outcomes they would reach.”
The study measured “Scalia-ness” in three ways: How much the candidate engages with or promotes originalism, Scalia’s preferred interpretive theory, in their opinions; how often they cite Scalia’s non-judicial writings; and how often they write separate opinions.
As to the third rationale, the authors argue that Scalia frequently wrote separately from his colleagues because he cared as much about reasoning as he did about outcomes. In addition, a true “Scalia-ite” would have a streak of brashness, a happy warrior who loves sparring with colleagues in concurrences or dissents.
The authors use these metrics to establish a “Scalia Index Score”(SIS) to measure each nominee. The study identifies Lee as the candidate with the highest SIS score, followed by Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals, and Judge William Pryor of the 11th U.S. Circuit Court of Appeals.
They note, however, that state judges have something of an advantage by this analysis, because a state judge is at greater liberty to promote originalism than is a federal judge — who is more constrained by precedent and the action of higher courts.
Lee, whose brother is Utah GOP Sen. Mike Lee, is a graduate of University of Chicago Law School and clerked for Justice Clarence Thomas at the Supreme Court. He was briefly in private practice before joining the faculty at J. Reuben Clark Law School at Brigham Young University. He held several posts at the Department of Justice during the Bush administration before his appointment to the Utah Supreme Court in 2010.
Professor John McGinnis of Northwestern University Pritzker School of Law has also identified Lee as similar to Scalia.
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