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With Orrin Hatch Retiring, Supreme Court Loses an Active ’Friend’

Utah Republican is one of the more frequent authors of amicus briefs

Sen. Orrin Hatch, R-Utah, who is retiring, has been a frequent author of friend of the court briefs. (Tom Williams/CQ Roll Call file photo)
Sen. Orrin Hatch, R-Utah, who is retiring, has been a frequent author of friend of the court briefs. (Tom Williams/CQ Roll Call file photo)

One of this year’s highest-profile Supreme Court cases gave retiring Sen. Orrin G. Hatch a final chance to broadcast his views beyond the Capitol building to the nine justices across the street.

In a criminal law case set for oral arguments Thursday, the Utah Republican filed a brief known as an amicus curiae — or a “friend of the court” who is not a party in a case. He gave them what he called “an experienced legislator’s perspective on the constitutional and practical issues at play.”

The justices can’t have been surprised to hear from the 42-year veteran of the Senate. Hatch, who has served two stints as Judiciary Committee chairman, has been one of the most consistent communicators to federal judges as they sort through the nation’s biggest policy fights and determine how to interpret laws and whether they are constitutional.

“If you’ve got members of Congress, if you’ve got Sen. Hatch on a brief, that’s something that you know is going to be read closely by the justices,” said Carrie Severino, a former clerk to Justice Clarence Thomas who has worked with Hatch and other lawmakers on briefs. “They may agree, they may disagree, but they certainly will take note of the arguments raised.”

Lawmakers don’t have to get involved in Supreme Court cases. But Hatch and other frequent friends of the court have used these briefs to signal their interest and passion in certain issues and to defend the actions of Congress, according to a 2004 study.

“It’s almost like having expert witnesses who have particular knowledge,” Severino said.

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In recent years, Hatch led or joined briefs on partisan issues such as the 2010 health care law’s insurance and birth control mandates, carbon pollution rules, and a federal law defining marriage as between one man and one woman.

But he filed bipartisan briefs as well, including one last year in a digital privacy case and another in 2014 to defend a law that requires compensation for victims of child pornography. “The statute’s meaning is plain, and it should be enforced as it was written,” the 2014 brief said.

Hatch also filed briefs connected to copyright law and intellectual property, an area where he was particularly active in his career in Congress.

Hatch’s interest in the court predates even his Senate service. The lawyer became a member of the Supreme Court Bar in April 1967, and in recent years still flagged cases for his staff that touched on his personal interests, such as religious freedom.

In his last brief in a Supreme Court case that will be heard while he is a sitting senator, Hatch weighs in on whether someone can be charged at both the federal and state level for the same crime.

Hatch’s brief relates that to the issue of the growing number of federal crimes, something about which he has introduced legislation, spoken on the Senate floor and published op-eds.

Hatch urged the Supreme Court to overturn a legal doctrine that allows state and federal prosecutors to charge someone for the same crime, arguing it “poses a particular hardship to lawmakers in their efforts to craft criminal punishments that reflect the interest they are attempting to protect.”

Republican Mike Lee, Utah’s junior senator and a former Supreme Court clerk, said that back in 2001, before he was a lawmaker, he co-wrote an amicus brief for Hatch.

Lee, whose father, Rex E. Lee, was solicitor general for President Ronald Reagan, now is one of the more active senators when it comes to filing amicus briefs, and he doesn’t think retirement will stop Hatch from filing more as well.

“Knowing Orrin Hatch, he’s not going to stop,” Lee said. “Why would he? He’s still young at heart and got lots of energy, he’s not going to stop. He’ll find lawyers to represent him. I don’t think he’s going anywhere.”

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