Professor Re Cited 10 Times in Supreme Court Oral Argument

Richard Re largeUCLA School of Law assistant professor of law Richard M. Re’s cutting-edge scholarship on the interpretation of Supreme Court decisions took center stage at the high court on March 27.

During oral argument in the case of Hughes v. United States, the justices and lawyers cited Re a total of 10 times, leading to a domination of the proceedings by Re’s data and discussion, an uncommon distinction for any law professor or advocate — especially one who was not present in court.

Re filed an amicus brief in Hughes, which deals with how people should interpret Supreme Court decisions in which there is no clear majority. In his brief, which sided with no party in the case, Re argued that courts abandon the so-called Marks rule, under which Supreme Court decisions that lack a clear majority are interpreted as standing for the “position taken by those members who concurred in the judgments on the narrowest grounds.” Doing so, he posited, would prevent “outlier views” from becoming precedent, and it would “encourage compromise” among the justices.

“Professor Re wrote an interesting amicus brief in this case,” said Justice Samuel Alito, opening the discussion to Re’s work. A lengthy conversation touching on Re’s brief ensued, also involving Justices Ruth Bader Ginsburg, Anthony Kennedy and Sonia Sotomayor, as well as the lawyers arguing the matter.

Responding to Sotomayor’s evaluation of the confusion that may arise following a split decision at the Supreme Court, attorney Eric Shumsky, arguing on behalf of petitioner Erik Lindsey Hughes, said that Re offers a solution to lower courts’ struggles to interpret sometimes murky binding precedent. “I think the strength of Professor Re’s view,” Shumsky said, “is that the current situation is not, in fact, providing much, if any, guidance.”

Re served as a law clerk to Justice Kennedy in the Supreme Court’s 2010-11 term.

He engages in a deeper analysis of the issues surrounding the Marks rule and in the Hughes case on his blog, Re’s Judicata, and in a forthcoming article in the Harvard Law Review. His 2016 Georgetown Law Journal article on a related topic, “Narrowing Supreme Court Precedent From Below,” won top prize from the Federal Courts Section of the Association of American Law Schools, as the best paper on federal courts by an untenured professor.

Re is the faculty co-director of PULSE @ UCLA Law, the school’s Program on Understanding Law, Science & Evidence, and he has been a member of the UCLA Law faculty since 2014. In 2017, he was named Professor of the Year by the law school’s graduating class.