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Supreme Court Justices Pay Tribute to the Late Rex E. Lee

By Lee Davidson

Rex E. Lee always said he learned how to count to five fast when he argued cases before the U.S. Supreme Court. That’s how many justices form the majority needed to win.

Fittingly on Friday, Oct. 18, five justices attended a belated memorial service in Washington, D.C., for the former BYU president–and two of them offered eulogies describing him as one of the best attorneys to argue before their court this century.

Retired Associate Justice Byron White–for whom President Lee was once a clerk–said, “He was an experienced, careful, and very brainy advocate. And he was the epitome of integrity on whom we could rely for straight talk about the cases coming before the court.”

Rex E Lee

While undergoing treatment for cancer in 1987, the late Rex E. Lee left the hospital to argue a case before the U.S. Supreme Court. He is shown here collecting his thoughts in the court’s Solicitor General’s Waiting Room just before presenting his oral argument.

Associate Justice Sandra Day O’Connor, who like President Lee has battled cancer, said, “He inspired all of us with his courage in the face of a terminal illness. Knowing him was one of the greatest privileges of my life. Remembering him will be one of the easiest.”

Listening in the audience were Justices John Paul Stevens, David H. Souter, and Clarence Thomas, and a large crowd of other Washington area government officials, lawyers, and friends who filled the Great Hall of the Justice Department. Also attending were Janet G. Lee and her seven children.

President Lee’s old law firm, Sidley & Austin, organized the service because many in Washington lamented they could not attend Utah services after President Lee died seven months ago, and they wanted to honor his work at the Supreme Court, said Carter Phillips, a partner in the firm.

President Lee argued 59 cases before the Supreme Court in roles as a private attorney, the assistant attorney general in charge of the Justice Department’s Civil Division, and as U.S. solicitor general, which White called, “the lawyer’s lawyer job in the executive branch” to argue its position before the high court.

“He won an exceedingly high percentage of those cases,” O’Connor said, including 23 of the 30 cases he argued as solicitor general during Ronald Reagan’s first term.

She recalled that when right-wing Reagan supporters blasted him for not adhering at all times to Reagan’s policies, President Lee replied, “I’m the solicitor general, not the pamphleteer general.”

“I can truthfully say that all of the justices enjoyed Rex Lee’s presentations before us. He was a highly respected advocate, showing not only his detail of knowledge about the case and the law, but exhibiting wit and charm every time,” she added.

“I remember an appearance at the court by Rex Lee [near the end of his 1987 hospitalization for cancer treatment]. Looking very pale and weak, he had to sit on a stool for the only time I saw him do that. I think he wore a wig. But nonetheless, [he was] effective. And we were all very moved by that.”

O’Connor added that President Lee accepted the presidency of BYU on one condition: “That he could still argue cases before our court–in his spare time! Well, he found enough time to do so on nine occasions while he was president of BYU.”

President Lee’s friend, Washington attorney Theodore B. Olson, said, “I’m willing to bet that even as a part-time lawyer, Rex probably had more arguments than any other attorney in private practice in that period.”

He added, “Rex was more comfortable at that [Supreme Court] podium than maybe anyplace else in the world. Part of it was because the court [justices] had long come to accept that Rex was totally prepared, responsive to their concerns and needs, and absolutely honest, even if it meant he would have to acknowledge a weakness in his client’s argument.”

Olson said, “When Rex stood up, the court always seemed to change. It became more animated, almost excited.”

President Lee’s son Tom also spoke and said that his father “was equally at ease talking to an Arizona sawmiller as to the Supreme Court because all men stood on an equal plain in his eyes. He never ever put on airs.”

But he did embarrass his son on family vacations when he regularly “searched for the tallest, fastest roller coasters and always dashed for the first car.” Before the descent of the first hill, President Lee would raise his hands over his head and cry “Yippee” three times as his son pretended not to know him, Tom recalled. “He knew how to enjoy a roller coaster ride.”

Current Acting Solicitor General Walter E. Dellinger said Lee’s influence is still felt in his office because of the people he trained and the standards he set. “Some few people have influence that lasts well beyond their time. One is Rex Lee.”

Reprinted with permission from the Deseret News, Oct. 19, 1996.