[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4010 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 4010
To amend title 28, United States Code, to provide for the establishment
of a code of conduct for the justices of the Supreme Court of the
United States, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 6, 2022
Mr. Whitehouse (for himself and Mr. Blumenthal) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To amend title 28, United States Code, to provide for the establishment
of a code of conduct for the justices of the Supreme Court of the
United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``21st Century Courts Act of 2022''.
SEC. 2. CODE OF CONDUCT FOR THE SUPREME COURT OF THE UNITED STATES.
(a) In General.--Chapter 16 of title 28, United States Code, is
amended by adding at the end the following:
``Sec. 365. Codes of conduct
``(a) Not later than 180 days after the date of the enactment of
this section--
``(1) the Supreme Court of the United States shall, after
appropriate public notice and opportunity for comment, issue a
code of conduct for the justices of the Supreme Court; and
``(2) the Judicial Conference of the United States shall
issue a code of conduct for the judges of the courts of
appeals, the district courts (including bankruptcy judges and
magistrate judges), and the Court of International Trade.
``(b) If the Supreme Court of the United States fails to comply
with subsection (a), the code of conduct for justices of the Supreme
Court shall consist of the Code of Conduct for United States Judges, as
in effect on the date of enactment of this section.
``(c) The Supreme Court of the United States and the Judicial
Conference may modify the applicable codes of conduct under this
section after giving appropriate public notice and opportunity for
comment.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 16 of title 28, United States Code, is amended by adding at the
end the following:
``365. Codes of conduct.''.
SEC. 3. DISQUALIFICATION OF FEDERAL JUDGES.
Section 455 of title 28, United States Code, is amended--
(1) in subsection (a), by inserting ``bankruptcy judge,''
after ``judge,'';
(2) in subsection (b), by adding at the end the following:
``(6) Where the justice, judge bankruptcy judge, or
magistrate judge of the United States received, during the 6-
year period ending on the date on which the judge was assigned
to the proceeding, income, a gift, or reimbursement required to
be reported under section 102 of the Ethics in Government Act
of 1978 (5 U.S.C. App.) from a party to the proceeding, a
lawyer in the proceeding, an individual employed in a
supervisory capacity by a party or law firm in the proceeding,
or an affiliate of a party or law firm in the proceeding.
``(7) Where a party to the proceeding, a lawyer in the
proceeding, an individual employed in a supervisory capacity by
a party or law firm in the proceeding, or an affiliate of a
party or law firm in the proceeding made any lobbying contact
or spent substantial funds in support of the nomination,
confirmation, or appointment of the justice, judge, bankruptcy
judge, or magistrate judge of the United States.
``(8) Where the justice, judge, bankruptcy judge, or
magistrate judge of the United States, their spouse, child, or
spouse of their child has, during the 6-year period ending on
the date on which the justice, judge, bankruptcy judge, or
magistrate judge of the United States was assigned to the
proceeding--
``(A) received income, a gift, or reimbursement
required to be reported under section 102 of the Ethics
in Government Act of 1978 (5 U.S.C. App.) from, or been
employed or volunteered for more than 6 consecutive
months in an official supervisory or advisory capacity
for a party to the proceeding, a lawyer in the
proceeding, or an affiliate of a party or law firm in
the proceeding; or
``(B) been employed or volunteered for more than 6
consecutive months in an official supervisory or
advisory capacity alongside a lawyer in the
proceeding.'';
(3) by striking subsection (c) and inserting the following:
``(c) A justice, judge, bankruptcy judge, or magistrate judge of
the United States shall be informed about--
``(1) the personal and fiduciary financial interests of the
justice, judge, bankruptcy judge, or magistrate judge of the
United States;
``(2) the personal financial interests of the spouse and
minor children residing in the household of the justice, judge,
bankruptcy judge, or magistrate judge of the United States; and
``(3) any interest that could be substantially affected by
the outcome of the proceeding.'';
(4) in subsection (d)--
(A) in paragraph (4)--
(i) in clause (iii), by inserting ``and''
at the end; and
(ii) in clause (iv), by striking the period
at the end and inserting a semicolon; and
(B) by adding at the end the following:
``(5) `official supervisory or advisory capacity' includes
acting as a director, officer, trustee, or any other equivalent
position;
``(6) `affiliate' means an entity that effectively controls
or is controlled by another entity or is associated with
another entity under common ownership or control, regardless of
tax status or corporate form. Whether an entity is an affiliate
of another shall be determined under the totality of the
circumstances, including--
``(A) whether the entities share employees, board
members, or officers;
``(B) whether the entities share facilities or
mailing addresses;
``(C) whether the entities are related
organizations, as defined by the Internal Revenue
Service; and
``(D) any indicia that the 2 entities are alter
egos or otherwise effectively the same organization
regardless of tax status or corporate form;
``(7) `substantial funds' means an amount of money that a
reasonable person would consider to be significant based on the
totality of circumstances, including--
``(A) the proportion of funds spent relative to the
revenues or expenditures of the individual or entity;
``(B) the proportion of funds spent relative to
other known spending in support of the nomination,
confirmation, or appointment of the justice, judge,
bankruptcy judge, or magistrate judge of the United
States; and
``(C) any other objective indicia of the
significance of the financial support of the individual
or entity for the nomination, confirmation, or
appointment of the justice, judge, bankruptcy judge, or
magistrate judge of the United States.'';
(5) in subsection (e)--
(A) by adding ``bankruptcy judge,'' after
``judge,'';
(B) in the first sentence, by inserting ``, unless
the ground for disqualification arises under paragraph
(7) of that subsection'' before the period at the end;
and
(C) after the second sentence, by adding ``Where
the ground for disqualification arises only under
subsection (b)(7), waiver may be accepted only if
offered by all parties to the proceeding.'';
(6) in subsection (f), by inserting ``under subsection
(b)(4)'' after ``disqualified''; and
(7) by adding at the end the following:
``(g) If a justice, judge, bankruptcy judge, or magistrate judge
learns that a condition requiring disqualification under this section
is present, the justice, judge, bankruptcy judge, or magistrate judge
shall--
``(1) immediately notify all parties to the proceeding; and
``(2) include the notification required under paragraph (1)
in the official record of the proceeding.
``(h)(1) A justice, judge, bankruptcy judge, or magistrate judge
shall grant or certify to a reviewing panel a timely motion filed by a
party to the proceeding that is accompanied by a certificate of good
faith and an affidavit alleging facts sufficient to show that
disqualification of the justice, judge, bankruptcy judge, or magistrate
judge is required under this section or any other Federal law.
``(2) A reviewing panel described in paragraph (1) shall be
selected at random from judges of the United States who do not sit on
the same court as the judge, bankruptcy judge, or magistrate judge who
is the subject of the motion or as the other members of the reviewing
panel. No more than 1 member of the reviewing panel may be a judge of
the same judicial circuit as the judge, bankruptcy judge, or magistrate
judge who is the subject of the motion.
``(3) The Supreme Court of the United States shall be the reviewing
panel for a motion seeking to disqualify a justice.
``(i) The clerk of the applicable court shall publish timely notice
on the website of the court of--
``(1) any matter in which a justice, judge, bankruptcy
judge, or magistrate judge of the United States disqualifies is
disqualified under this section;
``(2) in the case of any matter in which the reviewing
panel under subsection (h) rules on a motion to disqualify; and
``(3) an explanation of each reason for the
disqualification or ruling, which shall include a specific
identification of each circumstance that resulted in
disqualification.''.
SEC. 4. CONFLICTS RELATED TO AMICI CURIAE.
(a) In General.--Exception as provided in subsection (b), the
Supreme Court of the United States and the Judicial Conference of the
United States shall prescribe rules of procedure in accordance with
sections 2072 through 2074 of title 28, United States Code, for
prohibiting the filing of or striking an amicus brief that would result
in the disqualification of a justice, judge, or magistrate judge.
(b) Initial Transmittal.--The Supreme Court of the United States
shall transmit to Congress--
(1) the proposed rules required under subsection (a) not
later than 180 days after the date of enactment of this Act;
and
(2) any rules in addition to those transmitted under
paragraph (1) pursuant to section 2074 of title 28, United
States Code.
SEC. 5. AMICUS DISCLOSURE.
(a) In General.--Chapter 111 of title 28, United States Code, is
amended by adding at the end the following:
``Sec. 1660. Disclosures related to amicus activities
``(a) Definition.--In this section, the term `covered amicus' means
any person, including any affiliate of the person, that files an amicus
brief in a calendar year in the Supreme Court of the United States or a
court of appeals of the United States.
``(b) Disclosure.--
``(1) In general.--Any covered amicus that files an amicus
brief in the Supreme Court of the United States or a court of
appeals of the United States shall list in the amicus brief the
name of any person who--
``(A) contributed to the preparation or submission
of the amicus brief;
``(B) contributed not less than 3 percent of the
gross annual revenue of the covered amicus for the
previous calendar year if the covered amicus is not an
individual; or
``(C) contributed more than $100,000 to the covered
amicus in the previous calendar year.
``(2) Exceptions.--The requirements of this subsection
shall not apply to amounts received by a covered amicus
described in paragraph (1) in commercial transactions in the
ordinary course of any trade or business conducted by the
covered amicus or in the form of investments (other than
investments by the principal shareholder in a limited liability
corporation) in an organization if the amounts are unrelated to
the amicus filing activities of the covered amicus.
``(c) Audit.--The Comptroller General of the United States shall
conduct an annual audit to ensure compliance with this section.
``(d) Prohibition on Provision of Gifts or Travel by Covered Amici
to Judges and Justices.--
``(1) In general.--Except as provided in paragraph (2), no
covered amicus may make a gift or provide travel to a judge of
a court of appeals of the United States, the Chief Justice of
the United States, or an associate justice of the Supreme Court
of the United States.
``(2) Reimbursement for travel for appearances at
accredited law schools.--Paragraph (1) shall not apply to
reimbursement for travel for an appearance at an accredited law
school.
``(e) Civil Fines.--Whoever knowingly fails to comply with any
provision of this section shall, upon proof of such knowing violation
by a preponderance of the evidence, be subject to a civil fine of not
more than $200,000, depending on the extent and gravity of the
violation.
``(f) Rules of Construction.--
``(1) Constitutional rights.--Nothing in this section shall
be construed to prohibit or interfere with--
``(A) the right to petition the Government for the
redress of grievances;
``(B) the right to express a personal opinion; or
``(C) the right of association, protected by the
First Amendment to the Constitution of the United
States.
``(2) Prohibition of activities.--Nothing in this section
shall be construed to prohibit, or to authorize any court to
prohibit, amicus activities by any person or entity, regardless
of whether such person or entity is in compliance with the
requirements of this section.
``(g) Severability.--If any provision of this section, or the
application thereof, is held invalid, the validity of the remainder of
this section and the application of such provision to other persons and
circumstances shall not be affected thereby.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 111 of title 28, United States Code, is amended by adding at
the end the following:
``1660. Disclosures related to amicus activities.''.
SEC. 6. JUDICIAL TRAVEL.
(a) Disclosures Regarding Travel-Related Reimbursements.--
(1) In general.--Section 102(a)(2)(B) of the Ethics in
Government Act of 1978 (5 U.S.C. App.) is amended--
(A) by striking ``source and a brief'' and
inserting ``source, and a brief'';
(B) by inserting ``, including the value,'' before
``of reimbursements''; and
(C) by striking ``greater and received'' and
inserting ``greater, received''.
(2) Periodic reports.--Section 103 of the Ethics in
Government Act of 1978 (5 U.S.C. App.) is amended by adding at
the end the following:
``(m)(1) Not later than 30 days after completing travel in
connection with which a judicial officer receives, or will receive, a
reimbursement required to be reported under section 102(a)(2)(B), the
judicial officer shall file a report regarding the reimbursement.
``(2) The Administrative Office of the United States Courts shall
publish on a website of the Federal judiciary each report filed under
paragraph (1).''.
(b) Definition of Personal Hospitality of an Individual.--
(1) In general.--Section 109(14) of the Ethics in
Government Act of 1978 (5 U.S.C. App.) is amended--
(A) by striking ``any individual' means'' and
inserting the following: ``an individual'--
``(A) means'';
(B) in subparagraph (A) (as so designated)--
(i) by striking ``his family'' each place
it appears and inserting ``the family of the
individual''; and
(ii) by adding ``and'' after the semicolon;
and
(C) by adding at the end the following:
``(B) with respect to a judicial officer, does not
include--
``(i) private travel on a boat or airplane
owned by an individual if that travel is
substituting for commercial transportation;
``(ii) any food, lodging, or entertainment
provided by an individual who has (or owns or
controls an entity that has) a matter pending
before the court on which the judicial officer
serves or before a court the decisions of which
may be appealed to the court on which the
judicial officer serves;
``(iii) lodging at a residence or other
property that is rented to others by the
individual providing the hospitality;
``(iv) hospitality provided by an
individual at--
``(I) a restaurant, nightclub,
resort, hotel, or other commercial
establishment; or
``(II) a private club of which the
individual is a paying member;
``(v) hospitality extended by an
individual, the cost of which is paid for by a
corporation or organization, including a
corporation or organization that is not less
than 10-percent owned by the individual; or
``(vi) hospitality extended by an
individual, the cost of which is reimbursed to
the individual by any third party.''.
(2) Certification regarding lack of reimbursement.--Section
102(a)(2) of the Ethics in Government Act of 1978 (5 U.S.C.
App.) is amended--
(A) in subparagraph (A), by striking ``The
identity'' and inserting ``Subject to subparagraphs (C)
and (D), the identity''; and
(B) by adding at the end the following:
``(D) A judicial officer who receives food,
lodging, or entertainment that is exempted under
subparagraph (A) from being reported as being food,
lodging, or entertainment received as personal
hospitality of an individual shall include in the
report covering the period during which the food,
lodging, or entertainment was received a certification
that the cost of the food, lodging, or entertainment
was not reimbursed by any third party.''.
SEC. 7. FINANCIAL CONFLICTS OF INTEREST.
Section 208 of title 18, United States Code, is amended by
inserting after ``Government employee,'', ``or an officer or employee
of the judicial branch of the United States Government,''.
SEC. 8. VIDEO RECORDING OF COURT PROCEEDINGS.
(a) Courts of Appeals.--
(1) In general.--Chapter 3 of title 28, United States Code,
is amended by adding at the end the following:
``Sec. 50. Internet publication of certain video recordings
``(a) In General.--The open proceedings of each hearing of a court
of appeals shall be made available by video for public transmission
over the internet--
``(1) to the extent practicable, in real time during such
hearing; and
``(2) for not fewer than 5 years after the date on which
the hearing concludes.
``(b) Copyright Protection Not Available.--An audio or video
recording created pursuant to the requirement under this section shall
be considered a work of the United States Government for purposes of
section 105 of title 17.''.
(2) Technical and conforming amendment.--The table of
sections for chapter 3 of title 28, United States Code, is
amended by adding at the end the following:
``50. Internet publication of certain video recordings.''.
(b) Supreme Court of the United States.--
(1) In general.--Chapter 1 of title 28, United States Code,
is amended by adding at the end the following:
``Sec. 7. Internet publication of certain video recordings
``(a) In General.--Each oral argument and reading of an opinion
before the Supreme Court of the United States shall be made available
by video for public transmission over the internet--
``(1) on the day of such oral argument and reading; and
``(2) in real time during such oral argument and opinion
reading.
``(b) Copyright Protection Not Available.--An recording created
pursuant to the requirement under this section shall be considered a
work of the United States Government for purposes of section 105 of
title 17.''.
(2) Technical and conforming amendment.--The table of
sections for chapter 1 of title 28, United States Code, is
amended by adding at the end the following:
``7. Internet publication of certain video recordings.''.
SEC. 9. RESTRICTIONS ON SEALED COURT FILINGS.
(a) In General.--Chapter 111 of title 28, United States Code, as
amended by section 5 of this Act, is amended by adding at the end the
following:
``Sec. 1661. Restrictions on sealing judicial records
``(a) In General.--Unless otherwise provided by law, no court may
seal any judicial record or any part of a judicial record unless--
``(1) the court finds that a compelling interest justifies
abridging the right of public access to the judicial record or
the part of the judicial record;
``(2) the findings and conclusions of the court are
specific to each judicial record or each part of a judicial
record;
``(3) the seal is narrowly tailored and lasts no longer
than necessary; and
``(4) the public has been given notice and opportunity to
challenge the seal.
``(b) Rules.--
``(1) In general.--Except as provided in paragraph (2), the
Supreme Court of the United States and the Judicial Conference
of the United States shall prescribe rules of procedure in
accordance with sections 2072 through 2074 to ensure that
disinterested members of the public have a simplified and
inexpensive process to contest a motion to seal a judicial
record, to appeal an order sealing a judicial record, and to
request that a judicial record be unsealed. No local rule of
procedure may be less protective of the right of public access
to judicial records than the rules prescribed under this
subsection. Such rules shall be prescribed and submitted to the
Congress pursuant to sections.
``(2) Initial transmittal.--The Supreme Court of the United
States shall transmit to Congress--
``(A) the proposed rules required under paragraph
(1) not later than 1 year after the date of enactment
of this section; and
``(B) any rules in addition to those transmitted
under paragraph (1) pursuant to section 2074 of title
28, United States Code.
``(c) Rules of Construction.--Nothing in this section may be
construed to--
``(1) abolish, diminish, or infringe upon any right,
responsibility, or remedy provided by the Constitution of the
United States or any other law;
``(2) relieve a court of any part of the independent duty
of the court to enforce the right of public access to judicial
records; or
``(3) abrogate any rule of law that is more or additionally
protective of the right of public access to judicial
records.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 111 of title 28, United States Code, as amended by section 5 of
this Act, is amended by adding at the end the following:
``1661. Restrictions on sealing judicial records.''.
SEC. 10. STUDIES BY THE FEDERAL JUDICIAL CENTER.
(a) In General.--Not later than December 31, 2022, and every other
year thereafter, the Federal Judicial Center shall conduct a study of
the extent of compliance or noncompliance with the requirements of
sections 144 and 455 of title 28, United States Code, as amended by
section 3 of this Act.
(b) Reports to Congress.--Not later than April 1 of each year
following the completion of the study required under subsection (a)--
(1) the Federal Judicial Center--
(A) shall submit to Congress a report containing
the findings of the study; and
(B) may submit to Congress recommendations to
improve the compliance by the Federal judiciary with
the requirements of sections 144 and 455 of title 28,
United States Code, as amended by section 3 of this
Act; and
(2) the Comptroller General of the United States shall
submit to Congress a report containing an evaluation of the
methodology and findings of the study.
(c) Facilitation of Studies.--In order to facilitate the studies
required under subsection (a)--
(1) the Judicial Conference of the United States shall
maintain a record of each instance in which a justice, judge,
bankruptcy judge, or magistrate judge was not assigned to a
case due to potential or actual conflicts indicated on a
conflicts sheet; and
(2) the clerk of each court shall maintain and include in
the relevant case docket a record of each instance in which a
justice, judge, bankruptcy judge, or magistrate judge
disqualifies after a case assignment is made.
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