[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 359 Reported in Senate (RS)]
<DOC>
Calendar No. 199
118th CONGRESS
1st Session
S. 359
To amend title 28, United States Code, to provide for a code of conduct
for justices of the Supreme Court of the United States, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 9, 2023
Mr. Whitehouse (for himself, Mr. Blumenthal, Mr. Merkley, Mr. Booker,
Mrs. Gillibrand, Mr. Reed, Mrs. Feinstein, Mr. Warner, Mr. Sanders, Mr.
Markey, Mr. Durbin, Ms. Hirono, Mr. Van Hollen, Mr. Welch, Mr. Schatz,
Mr. Padilla, Mr. Wyden, Ms. Baldwin, Ms. Klobuchar, Mr. Cardin, Ms.
Hassan, Mr. Warnock, Mr. Coons, Mr. Fetterman, Mr. Ossoff, Mr. Schumer,
Mr. Carper, and Mr. Hickenlooper) introduced the following bill; which
was read twice and referred to the Committee on the Judiciary
September 5, 2023
Reported by Mr. Durbin, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To amend title 28, United States Code, to provide for a code of conduct
for 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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Supreme Court Ethics,
Recusal, and Transparency Act of 2023''.</DELETED>
<DELETED>SEC. 2. CODE OF CONDUCT FOR THE SUPREME COURT OF THE UNITED
STATES.</DELETED>
<DELETED> (a) In General.--Chapter 16 of title 28, United States
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 365. Codes of conduct</DELETED>
<DELETED> ``(a) Justices.--Not later than 180 days after the date of
enactment of this section, the Supreme Court of the United States
shall, after appropriate public notice and opportunity for comment in
accordance with section 2071, issue a code of conduct for the justices
of the Supreme Court.</DELETED>
<DELETED> ``(b) Other Judges.--Not later than 180 days after the
date of enactment of this section, the Judicial Conference of the
United States shall, after appropriate public notice and opportunity
for comment in accordance with section 2071, 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.</DELETED>
<DELETED> ``(c) Modification.--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 in accordance with section 2071.</DELETED>
<DELETED>``Sec. 366. Public access to ethics rules</DELETED>
<DELETED> ``The Supreme Court of the United States shall make
available on its internet website, in a full-text, searchable,
sortable, and downloadable format, copies of the code of conduct issued
under section 365(a), any rules established by the Counselor to the
Chief Justice under section 677 and any other related rules or
resolutions, as determined by the Chief Justice of the United States,
issued by the Counselor to the Chief Justice of the United States or
agreed to by the justices of the Supreme Court.</DELETED>
<DELETED>``Sec. 367. Complaints against justices</DELETED>
<DELETED> ``(a) Receipt of Complaints.--Not later than 180 days
after the date of enactment of this section, the Supreme Court of the
United States shall establish procedures, modeled after the procedures
set forth in sections 351 through 364, under which individuals may file
with the Court, or the Court may identify, complaints alleging that a
justice of the Supreme Court--</DELETED>
<DELETED> ``(1) has violated--</DELETED>
<DELETED> ``(A) the code of conduct issued pursuant
to section 365(a);</DELETED>
<DELETED> ``(B) section 455; or</DELETED>
<DELETED> ``(C) any other applicable provision of
Federal law; or</DELETED>
<DELETED> ``(2) has otherwise engaged in conduct that
undermines the integrity of the Supreme Court of the United
States.</DELETED>
<DELETED> ``(b) Judicial Investigation Panel.--</DELETED>
<DELETED> ``(1) In general.--Upon receipt or identification
of a complaint under subsection (a), the Supreme Court of the
United States shall refer such complaint to a judicial
investigation panel, which shall be composed of a panel of 5
judges selected randomly from among the chief judge of each
circuit of the United States.</DELETED>
<DELETED> ``(2) Duties.--The judicial investigation panel
shall--</DELETED>
<DELETED> ``(A) review and, if appropriate as
determined by the panel, investigate all complaints
submitted to the panel using procedures established by
the panel and modeled after the procedures set forth in
sections 351 through 364;</DELETED>
<DELETED> ``(B) present to the Supreme Court of the
United States any findings and recommendations for
necessary and appropriate action by the Supreme Court,
including dismissal of the complaint, disciplinary
actions, or changes to Supreme Court rules or
procedures;</DELETED>
<DELETED> ``(C) if the panel does not recommend
dismissal of the complaint, not later than 30 days
following the presentation of any findings and
recommendations under this paragraph, publish a report
containing such findings and recommendations;
and</DELETED>
<DELETED> ``(D) if the panel recommends dismissal of
the complaint, the panel may publish any findings and
recommendations if the panel determines that such
publication would be in furtherance of the public
interest.</DELETED>
<DELETED> ``(3) Powers.--In conducting any investigation
under this section, the judicial investigation panel may hold
hearings, take sworn testimony, issue subpoenas ad
testificandum and subpoenas duces tecum, and make necessary and
appropriate orders in the exercise of its authority.</DELETED>
<DELETED> ``(4) Access.--If the judicial investigation panel
determines that a substantially similar complaint was
previously submitted under section 351, but that such
substantially similar complaint was dismissed for lack of
authority to review or act upon such complaint, the panel shall
have access to any information gathered pursuant to this
chapter in relation to such substantially similar
complaint.</DELETED>
<DELETED> ``(5) Compensation.--The judicial investigation
panel may appoint and fix the compensation of such staff as it
deems necessary.''.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``365. Codes of conduct.
<DELETED>``366. Public access to ethics rules.
<DELETED>``367. Complaints against justices.''.
<DELETED>SEC. 3. MINIMUM GIFT, TRAVEL, AND INCOME DISCLOSURE STANDARDS
FOR JUSTICES OF THE SUPREME COURT.</DELETED>
<DELETED> Section 677 of title 28, United States Code, is amended by
adding at the end the following:</DELETED>
<DELETED> ``(d) The Counselor, with the approval of the Chief
Justice, shall establish rules governing the disclosure of all gifts,
income, or reimbursements, as those terms are defined in section 13101
of title 5, received by any justice and any law clerk to a justice.
Such rules shall, at minimum, require disclosure of any information
concerning gifts, income, and reimbursements required to be disclosed
under the Standing Rules of the Senate and the Rules of the House of
Representatives.''.</DELETED>
<DELETED>SEC. 4. CIRCUMSTANCES REQUIRING DISQUALIFICATION.</DELETED>
<DELETED> (a) Anticorruption Protections.--Subsection (b) of section
455 of title 28, United States Code, is amended by adding at the end
the following:</DELETED>
<DELETED> ``(6) Where the justice or judge knows that a
party to the proceeding or an affiliate of a party to the
proceeding made any lobbying contact, as defined in section 3
of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602), or
spent substantial funds in support of the nomination,
confirmation, or appointment of the justice or judge.</DELETED>
<DELETED> ``(7) Where the justice or judge, their spouse,
minor child, or a privately held entity owned by any such
person received income, a gift, or reimbursement, as those
terms are defined in section 13101 of title 5--</DELETED>
<DELETED> ``(A) from a party to the proceeding or an
affiliate of a party to the proceeding; and</DELETED>
<DELETED> ``(B) during the period beginning on the
date that is 6 years before the date on which the
justice or judge was assigned to the proceeding and
ending on the date of final disposition of the
proceeding.''.</DELETED>
<DELETED> (b) Duty To Know.--Subsection (c) of section 455 of title
28, United States Code, is amended to read as follows:</DELETED>
<DELETED> ``(c) A justice, judge, magistrate judge, or bankruptcy
judge of the United States shall ascertain--</DELETED>
<DELETED> ``(1) the personal and fiduciary financial
interests of the justice or judge;</DELETED>
<DELETED> ``(2) the personal financial interests of the
spouse and minor children residing in the household of the
justice or judge; and</DELETED>
<DELETED> ``(3) any interest of the persons described in
paragraph (2) that could be substantially affected by the
outcome of the proceeding.''.</DELETED>
<DELETED> (c) Divestment.--Subsection (f) of section 455 of title
28, United States Code, is amended by inserting ``under subsection
(b)(4)'' after ``disqualified''.</DELETED>
<DELETED> (d) Duty To Notify.--Section 455 of title 28, United
States Code, is amended by adding at the end the following:</DELETED>
<DELETED> ``(g) If at any time a justice, judge, magistrate judge,
or bankruptcy judge of the United States learns of a condition that
could reasonably require disqualification under this section, the
justice or judge shall immediately notify all parties to the
proceeding.''.</DELETED>
<DELETED> (e) Technical and Conforming Amendments.--Section 455 of
title 28, United States Code, as amended by this section, is amended--
</DELETED>
<DELETED> (1) in the section heading, by striking ``judge,
or magistrate judge'' and inserting ``judge, magistrate judge,
or bankruptcy judge'';</DELETED>
<DELETED> (2) in subsection (a), by striking ``judge, or
magistrate judge'' and inserting ``judge, magistrate judge, or
bankruptcy judge'';</DELETED>
<DELETED> (3) in subsection (b)--</DELETED>
<DELETED> (A) in paragraph (2), by striking ``the
judge or such lawyer'' and inserting ``the justice, the
judge, or such lawyer'';</DELETED>
<DELETED> (B) in paragraph (5)(iii), by inserting
``justice or'' before ``judge''; and</DELETED>
<DELETED> (C) in paragraph (5)(iv), by inserting
``justice's or'' before ``judge's'';</DELETED>
<DELETED> (4) in subsection (c), by inserting ``justice or''
before ``judge'';</DELETED>
<DELETED> (5) in subsection (d)(4)(i), by inserting
``justice or'' before ``judge''; and</DELETED>
<DELETED> (6) in subsection (e), by striking ``judge, or
magistrate judge'' and inserting ``judge, magistrate judge, or
bankruptcy judge of the United States''.</DELETED>
<DELETED> (f) Public Notice.--The rules of each court subject to
section 455 of title 28, United States Code, as amended by this
section, shall be amended to require that the clerk shall publish
timely notice on the website of the court of--</DELETED>
<DELETED> (1) any matter in which a justice, judge,
magistrate judge, or bankruptcy judge of the United States is
disqualified under such section;</DELETED>
<DELETED> (2) any matter in which the reviewing panel under
section 1660 of title 28, United States Code, rules on a motion
to disqualify; and</DELETED>
<DELETED> (3) an explanation of each reason for the
disqualification or ruling, which shall include a specific
identification of each circumstance that resulted in such
disqualification or ruling, but which shall not include any
private or sensitive information deemed by a majority of the
reviewing panel under section 1660 of title 28, United States
Code, as added by section 5 of this Act, to be appropriate for
redaction and unnecessary in order to provide the litigants and
public a full understanding of the reasons for the
disqualification or ruling.</DELETED>
<DELETED>SEC. 5. REVIEW OF CERTIFIED DISQUALIFICATION
MOTIONS.</DELETED>
<DELETED> (a) In General.--Chapter 111 of title 28, United States
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 1660. Review of certified motions to
disqualify</DELETED>
<DELETED> ``(a) Motion for Disqualification.--If a justice, judge,
magistrate judge, or bankruptcy judge of the United States is required
to be disqualified from a proceeding under any provision of Federal
law, a party to the proceeding may file a timely motion for
disqualification, accompanied by a certificate of good faith and an
affidavit alleging facts sufficient to show that disqualification of
the justice, judge, magistrate judge, or bankruptcy judge is so
required.</DELETED>
<DELETED> ``(b) Consideration of Motion.--A justice, judge,
magistrate judge, or bankruptcy judge of the United States shall either
grant or certify to a reviewing panel a timely motion filed pursuant to
subsection (a) and stay the proceeding until a final determination is
made with respect to the motion.</DELETED>
<DELETED> ``(c) Reviewing Panel.--</DELETED>
<DELETED> ``(1) In general.--A reviewing panel to which a
motion is certified under subsection (b) shall be composed of 3
judges selected at random from judges of the United States who
do not sit on the same court--</DELETED>
<DELETED> ``(A) as the judge, magistrate judge, or
bankruptcy judge who is the subject of the motion;
or</DELETED>
<DELETED> ``(B) as the other members of the
reviewing panel.</DELETED>
<DELETED> ``(2) Circuit limitation.--Not more than 1 member
of the reviewing panel may be a judge of the same judicial
circuit as the judge, magistrate judge, or bankruptcy judge who
is the subject of the motion.</DELETED>
<DELETED> ``(3) Participation.--The reviewing panel, prior
to its final determination with respect to a motion filed under
subsection (a), shall provide the judge, magistrate judge, or
bankruptcy judge of the United States who is the subject of
such motion an opportunity to provide in writing the views of
the judge on the motion, including the explanation of the judge
for not granting the motion.</DELETED>
<DELETED> ``(d) Supreme Court Review.--The Supreme Court of the
United States, not including the justice who is the subject of a motion
seeking to disqualify a justice under subsection (a), shall be the
reviewing panel for such motions.''.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``1660. Review of certified motions to disqualify.''.
<DELETED>SEC. 6. DISCLOSURE BY PARTIES AND AMICI.</DELETED>
<DELETED> Not later than 1 year after the date of enactment of this
Act, the Supreme Court of the United States shall prescribe rules of
procedure in accordance with sections 2072 through 2074 of title 28,
United States Code, requiring each party or amicus to list in the
petition or brief of the party or amicus, as applicable, a description
and value of--</DELETED>
<DELETED> (1) any gift, income, or reimbursement, as those
terms are defined in section 13101 of title 5, United States
Code, provided to any justice, during the period beginning 2
years prior to the commencement of the proceeding and ending on
the date of final disposition of the proceeding, by--</DELETED>
<DELETED> (A) each such party, amicus, or affiliate
of each such party or amicus;</DELETED>
<DELETED> (B) the lawyers or law firms in the
proceeding of each such party or amicus; and</DELETED>
<DELETED> (C) the officers, directors, or employees
of each such party or amicus; and</DELETED>
<DELETED> (2) any lobbying contact or expenditure of
substantial funds by any person described in subparagraphs (A),
(B), and (C) of paragraph (1) in support of the nomination,
confirmation, or appointment of a justice.</DELETED>
<DELETED>SEC. 7. AMICUS DISCLOSURE.</DELETED>
<DELETED> (a) In General.--Chapter 111 of title 28, United States
Code, as amended by section 5, is amended by adding at the end the
following:</DELETED>
<DELETED>``Sec. 1661. Disclosures related to amicus
activities</DELETED>
<DELETED> ``(a) Disclosure.--</DELETED>
<DELETED> ``(1) In general.--Any person that files an amicus
brief in a court of the United States shall list in the amicus
brief the name of any person who--</DELETED>
<DELETED> ``(A) contributed to the preparation or
submission of the amicus brief;</DELETED>
<DELETED> ``(B) contributed not less than 3 percent
of the gross annual revenue of the amicus, or an
affiliate of the amicus, for the previous calendar year
if the amicus is not an individual; or</DELETED>
<DELETED> ``(C) contributed more than $100,000 to
the amicus, or an affiliate of the amicus, in the
previous calendar year.</DELETED>
<DELETED> ``(2) Exceptions.--The requirements of this
subsection shall not apply to amounts received in commercial
transactions in the ordinary course of any trade or business by
the amicus, or an affiliate of the 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 amicus.</DELETED>
<DELETED> ``(b) Audit.--The Director of the Administrative Office of
the United States Courts shall conduct an annual audit to ensure
compliance with this section.''.</DELETED>
<DELETED> (b) Technical and Conforming Amendment.--The table of
sections for chapter 111 of title 28, United States Code, as amended by
section 5, is amended by adding at the end the following:</DELETED>
<DELETED>``1661. Disclosures related to amicus activities.''.
<DELETED>SEC. 8. CONFLICTS RELATED TO AMICI CURIAE.</DELETED>
<DELETED> (a) In General.--Except 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.</DELETED>
<DELETED> (b) Initial Transmittal.--The Supreme Court of the United
States shall transmit to Congress--</DELETED>
<DELETED> (1) the proposed rules required under subsection
(a) not later than 180 days after the date of enactment of this
Act; and</DELETED>
<DELETED> (2) any rules in addition to those transmitted
under paragraph (1) pursuant to section 2074 of title 28,
United States Code.</DELETED>
<DELETED>SEC. 9. STUDIES AND REPORTS.</DELETED>
<DELETED> (a) Studies.--</DELETED>
<DELETED> (1) In general.--Beginning on the date that is 180
days after the date of enactment of this Act, and every other
year thereafter, the Director of the Federal Judicial Center
shall conduct a study on the extent of compliance or
noncompliance with the requirements of sections 144 and 455 of
title 28, United States Code.</DELETED>
<DELETED> (2) Additional time.--With respect to the first
such study required to be submitted under paragraph (1), the
requirements of that paragraph may be implemented after the
date described in that paragraph if the Director of the Federal
Judicial Center identifies in writing to the relevant
committees of Congress the additional time needed for
submission of the study.</DELETED>
<DELETED> (3) Facilitation of studies.--The Director of the
Federal Judicial Center shall maintain a record of each
instance in which--</DELETED>
<DELETED> (A) a justice, judge, magistrate judge, or
bankruptcy judge of the United States was not assigned
to a case due to potential or actual conflicts;
and</DELETED>
<DELETED> (B) a justice, judge, magistrate judge, or
bankruptcy judge of the United States disqualifies
themselves after a case assignment is made.</DELETED>
<DELETED> (b) Reports to Congress.--Not later than April 1 of each
year following the completion of the study required under subsection
(a), the Director of the Federal Judicial Center shall submit to
Congress a report containing the findings of the study and any
recommendations to improve compliance with sections 144 and 455 of
title 28, United States Code.</DELETED>
<DELETED> (c) GAO Review.--Not later than 1 year after the date on
which the report is submitted under subsection (b), and every 5 years
thereafter, the Comptroller General of the United States shall submit
to Congress a report containing--</DELETED>
<DELETED> (1) an evaluation of the methodology and findings
of the study required under subsection (a); and</DELETED>
<DELETED> (2) the audit required under section 1661 of title
28, United States Code, as added by section 7 of this
Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Supreme Court Ethics, Recusal, and
Transparency Act of 2023''.
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) Justices.--Not later than 180 days after the date of
enactment of this section, the Supreme Court of the United States
shall, after appropriate public notice and opportunity for comment in
accordance with section 2071, issue a code of conduct for the justices
of the Supreme Court.
``(b) Other Judges.--Not later than 180 days after the date of
enactment of this section, the Judicial Conference of the United States
shall, after appropriate public notice and opportunity for comment in
accordance with section 2071, 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.
``(c) Modification.--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 in accordance with section 2071.
``Sec. 366. Public access to ethics rules
``The Supreme Court of the United States shall make available on
its internet website, in a full-text, searchable, sortable, and
downloadable format, copies of the code of conduct issued under section
365(a), any rules established by the Counselor to the Chief Justice of
the United States under section 677 and any other related rules or
resolutions, as determined by the Chief Justice of the United States,
issued by the Counselor to the Chief Justice of the United States or
agreed to by the justices of the Supreme Court.
``Sec. 367. Complaints against justices
``(a) Receipt of Complaints.--Not later than 180 days after the
date of enactment of this section, the Supreme Court of the United
States shall establish procedures, modeled after the procedures set
forth in sections 351 through 364, under which individuals may file
with the Court, or the Court may identify, complaints alleging that a
justice of the Supreme Court--
``(1) has violated--
``(A) the code of conduct issued pursuant to
section 365(a);
``(B) section 455; or
``(C) any other applicable provision of Federal
law; or
``(2) has otherwise engaged in conduct that undermines the
integrity of the Supreme Court.
``(b) Judicial Investigation Panel.--
``(1) In general.--Upon receipt or identification of a
complaint under subsection (a), the Supreme Court of the United
States shall refer such complaint to a judicial investigation
panel, which shall be composed of a panel of 5 judges selected
randomly from among the chief judge of each circuit of the
United States.
``(2) Duties.--The judicial investigation panel--
``(A) shall review and, if appropriate as
determined by the panel, investigate all complaints
submitted to the panel using procedures established by
the panel and modeled after the procedures set forth in
sections 351 through 364;
``(B) shall present to the Supreme Court of the
United States any findings and recommendations for
necessary and appropriate action by the Supreme Court,
including dismissal of the complaint, disciplinary
actions, or changes to Supreme Court rules or
procedures;
``(C) if the panel does not recommend dismissal of
the complaint, not later than 30 days following the
presentation of any findings and recommendations under
this paragraph, shall publish a report containing such
findings and recommendations; and
``(D) if the panel recommends dismissal of the
complaint, may publish any findings and recommendations
if the panel determines that such publication would be
in furtherance of the public interest.
``(3) Powers.--In conducting any investigation under this
section, the judicial investigation panel may hold hearings,
take sworn testimony, issue subpoenas ad testificandum and
subpoenas duces tecum, and make necessary and appropriate
orders in the exercise of its authority.
``(4) Access.--If the judicial investigation panel
determines that a substantially similar complaint was
previously submitted under section 351, but that such
substantially similar complaint was dismissed for lack of
authority to review or act upon such complaint, the panel shall
have access to any information gathered pursuant to this
chapter in relation to such substantially similar complaint.
``(5) Compensation.--The judicial investigation panel may
appoint and fix the compensation of such staff as it deems
necessary.''.
(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.
``366. Public access to ethics rules.
``367. Complaints against justices.''.
SEC. 3. MINIMUM GIFT, TRAVEL, AND INCOME DISCLOSURE STANDARDS FOR
JUSTICES OF THE SUPREME COURT.
Section 677 of title 28, United States Code, is amended by adding
at the end the following:
``(e) The Counselor, with the approval of the Chief Justice, shall
establish rules governing the disclosure of all gifts, income, or
reimbursements, as those terms are defined in section 13101 of title 5,
received by any justice and any law clerk to a justice. Such rules
shall, at minimum, require disclosure of any information concerning
gifts, income, and reimbursements required to be disclosed under the
Standing Rules of the Senate and the Rules of the House of
Representatives.''.
SEC. 4. CIRCUMSTANCES REQUIRING DISQUALIFICATION.
(a) Anticorruption Protections.--Subsection (b) of section 455 of
title 28, United States Code, is amended by adding at the end the
following:
``(6) Where the justice or judge knows that a party to the
proceeding or an affiliate of a party to the proceeding made
any lobbying contact, as defined in section 3 of the Lobbying
Disclosure Act of 1995 (2 U.S.C. 1602), or spent substantial
funds in support of the nomination, confirmation, or
appointment of the justice or judge.
``(7) Where the justice or judge, their spouse, their minor
child, or a privately held entity owned by any such person
received income, a gift, or reimbursement, as those terms are
defined in section 13101 of title 5--
``(A) from a party to the proceeding or an
affiliate of a party to the proceeding; and
``(B) during the period beginning on the date that
is 6 years before the date on which the justice or
judge was assigned to the proceeding and ending on the
date of final disposition of the proceeding.''.
(b) Duty To Know.--Subsection (c) of section 455 of title 28,
United States Code, is amended to read as follows:
``(c) A justice, judge, magistrate judge, or bankruptcy judge of
the United States shall ascertain--
``(1) the personal and fiduciary financial interests of the
justice or judge;
``(2) the personal financial interests of the spouse and
minor children residing in the household of the justice or
judge; and
``(3) any interest of the persons described in paragraph
(2) that could be substantially affected by the outcome of the
proceeding.''.
(c) Divestment.--Subsection (f) of section 455 of title 28, United
States Code, is amended by inserting ``under subsection (b)(4)'' after
``disqualified''.
(d) Duty To Notify.--Section 455 of title 28, United States Code,
is amended by adding at the end the following:
``(g) If at any time a justice, judge, magistrate judge, or
bankruptcy judge of the United States learns of a condition that could
reasonably require disqualification under this section, the justice or
judge shall immediately notify all parties to the proceeding.''.
(e) Technical and Conforming Amendments.--Section 455 of title 28,
United States Code, as amended by this section, is amended--
(1) in the section heading, by striking ``judge, or
magistrate judge'' and inserting ``judge, magistrate judge, or
bankruptcy judge'';
(2) in subsection (a), by striking ``judge, or magistrate
judge'' and inserting ``judge, magistrate judge, or bankruptcy
judge'';
(3) in subsection (b)--
(A) in paragraph (2), by striking ``the judge or
such lawyer'' and inserting ``the justice, the judge,
or such lawyer'';
(B) in paragraph (5)(iii), by inserting ``justice
or'' before ``judge''; and
(C) in paragraph (5)(iv), by inserting ``justice's
or'' before ``judge's'';
(4) in subsection (d)(4)(i), by inserting ``justice or''
before ``judge''; and
(5) in subsection (e), by striking ``judge, or magistrate
judge'' and inserting ``judge, magistrate judge, or bankruptcy
judge of the United States''.
(f) Public Notice.--The rules of each court subject to section 455
of title 28, United States Code, as amended by this section, shall be
amended to require that the clerk shall publish timely notice on the
website of the court of--
(1) any matter in which a justice, judge, magistrate judge,
or bankruptcy judge of the United States is disqualified under
such section;
(2) any matter in which the reviewing panel under section
1660 of title 28, United States Code, as added by section 5 of
this Act, 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 such disqualification or
ruling, but which shall not include any private or sensitive
information deemed by a majority of the reviewing panel under
section 1660 of title 28, United States Code, as added by
section 5 of this Act, to be appropriate for redaction and
unnecessary in order to provide the litigants and public a full
understanding of the reasons for the disqualification or
ruling.
SEC. 5. REVIEW OF CERTIFIED DISQUALIFICATION MOTIONS.
(a) In General.--Chapter 111 of title 28, United States Code, is
amended by adding at the end the following:
``Sec. 1660. Review of certified motions to disqualify
``(a) Motion for Disqualification.--If a justice, judge, magistrate
judge, or bankruptcy judge of the United States is required to be
disqualified from a proceeding under any provision of Federal law, a
party to the proceeding may file a timely motion for disqualification,
accompanied by a certificate of good faith and an affidavit alleging
facts sufficient to show that disqualification of the justice, judge,
magistrate judge, or bankruptcy judge is so required.
``(b) Consideration of Motion.--A justice, judge, magistrate judge,
or bankruptcy judge of the United States shall either grant or certify
to a reviewing panel a timely motion filed pursuant to subsection (a)
and stay the proceeding until a final determination is made with
respect to the motion.
``(c) Reviewing Panel.--
``(1) In general.--A reviewing panel to which a motion is
certified under subsection (b) with respect to a judge,
magistrate judge, or bankruptcy judge of the United States
shall be composed of 3 judges selected at random from judges of
the United States who do not sit on the same court--
``(A) as the judge, magistrate judge, or bankruptcy
judge who is the subject of the motion; or
``(B) as the other members of the reviewing panel.
``(2) Circuit limitation.--Not more than 1 member of the
reviewing panel may be a judge of the same judicial circuit as
the judge, magistrate judge, or bankruptcy judge who is the
subject of the motion.
``(3) Participation.--The reviewing panel, prior to its
final determination with respect to a motion filed under
subsection (a), shall provide the judge, magistrate judge, or
bankruptcy judge of the United States who is the subject of
such motion an opportunity to provide in writing the views of
the judge on the motion, including the explanation of the judge
for not granting the motion.
``(d) Supreme Court Review.--The Supreme Court of the United
States, not including the justice who is the subject of a motion
seeking to disqualify a justice under subsection (a), shall be the
reviewing panel for such motions.''.
(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. Review of certified motions to disqualify.''.
SEC. 6. DISCLOSURE BY PARTIES AND AMICI.
Not later than 1 year after the date of enactment of this Act, the
Supreme Court of the United States shall prescribe rules of procedure
in accordance with sections 2072 through 2074 of title 28, United
States Code, requiring each party or amicus to list in the petition or
brief of the party or amicus, as applicable, a description and value
of--
(1) any gift, income, or reimbursement, as those terms are
defined in section 13101 of title 5, United States Code,
provided to any justice, during the period beginning 2 years
prior to the commencement of the proceeding and ending on the
date of final disposition of the proceeding, by--
(A) each such party, amicus, or affiliate of each
such party or amicus;
(B) the lawyers or law firms in the proceeding of
each such party or amicus; and
(C) the officers, directors, or employees of each
such party or amicus; and
(2) any lobbying contact or expenditure of substantial
funds by any person described in subparagraphs (A), (B), and
(C) of paragraph (1) in support of the nomination,
confirmation, or appointment of a justice.
SEC. 7. AMICUS DISCLOSURE.
(a) In General.--Chapter 111 of title 28, United States Code, as
amended by section 5, is amended by adding at the end the following:
``Sec. 1661. Disclosures related to amicus activities
``(a) Disclosure.--
``(1) In general.--Any person that files an amicus brief in
a court 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 amicus, or an affiliate of
the amicus, for the previous calendar year if the
amicus is not an individual; or
``(C) contributed more than $100,000 to the amicus,
or an affiliate of the amicus, in the previous calendar
year.
``(2) Exceptions.--The requirements of this subsection
shall not apply to amounts received in commercial transactions
in the ordinary course of any trade or business by the amicus,
or an affiliate of the 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
amicus.
``(b) Audit.--The Director of the Administrative Office of the
United States Courts shall conduct an annual audit to ensure compliance
with this section.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 111 of title 28, United States Code, as amended by section 5,
is amended by adding at the end the following:
``1661. Disclosures related to amicus activities.''.
SEC. 8. CONFLICTS RELATED TO AMICI CURIAE.
(a) In General.--Except 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. 9. STUDIES AND REPORTS.
(a) Studies.--
(1) In general.--Beginning on the date that is 180 days
after the date of enactment of this Act, and every other year
thereafter, the Director of the Federal Judicial Center shall
conduct a study on the extent of compliance or noncompliance
with the requirements of sections 144 and 455 of title 28,
United States Code.
(2) Additional time.--With respect to the first such study
required to be submitted under paragraph (1), the requirements
of that paragraph may be implemented after the date described
in that paragraph if the Director of the Federal Judicial
Center identifies in writing to the relevant committees of
Congress the additional time needed for submission of the
study.
(3) Facilitation of studies.--The Director of the Federal
Judicial Center shall maintain a record of each instance in
which--
(A) a justice, judge, magistrate judge, or
bankruptcy judge of the United States was not assigned
to a case due to potential or actual conflicts; and
(B) a justice, judge, magistrate judge, or
bankruptcy judge of the United States disqualifies
themselves after a case assignment is made.
(b) Reports to Congress.--Not later than April 1 of each year
following the completion of the study required under subsection (a),
the Director of the Federal Judicial Center shall submit to Congress a
report containing the findings of the study and any recommendations to
improve compliance with sections 144 and 455 of title 28, United States
Code.
(c) GAO Review.--Not later than 1 year after the date on which the
report is submitted under subsection (b), and every 5 years thereafter,
the Comptroller General of the United States shall submit to Congress a
report containing--
(1) an evaluation of the methodology and findings of the
study required under subsection (a); and
(2) the audit required under section 1661 of title 28,
United States Code, as added by section 7 of this Act.
SEC. 10. SENSE OF CONGRESS.
(a) Findings.--Congress finds the following:
(1) Since Justice Clarence Thomas's nomination to the
Supreme Court on July 1, 1991, he has been wrongfully subject
to multiple racially inflammatory insults.
(2) Racially charged and offensive remarks have been made
by several public figures with little to no consequence or
attention.
(3) Justice Thomas has been subject to multiple racial
attacks merely for expressing a viewpoint that does not comport
with offensive stereotypes about African Americans.
(4) On July 13, 2023, Minnesota Attorney General Keith
Ellison offensively likened Justice Thomas to a house slave
from the film Django Unchained.
(5) On April 27, 2014, Representative Bennie Thompson of
Mississippi, used racially charged language to characterize
Justice Thomas, including by calling him an ``Uncle Tom'' and
refused to rescind his remarks or issue an apology during an
interview on April 30, 2014.
(6) On February 14, 2023, Georgia State Senator Emanuel
Jones also used racially charged language to characterize
Justice Thomas, including by calling him an ``Uncle Tom''
figure.
(7) MSNBC host Joy Reid has cast aspersions on Justice
Thomas in a racially offensive manner for several years, in
light of her disagreement with his jurisprudence.
(8) Justice Thomas has been subject to numerous other
racially charged comments and slurs from those who disagree
with his jurisprudence.
(9) On July 13, 2022, more than 100 African American
academics and community leaders signed an open letter
condemning the ``barrage of racist, vicious, and ugly personal
attacks'' on Justice Thomas.
(10) Racially charged insults and defamatory comments have
surged in the wake of recent Supreme Court decisions, in an
attempt to humiliate, punish, and demean Justice Thomas.
(b) Sense of Congress.--It is the sense of Congress that Congress--
(1) condemns all racial attacks and comments leveled
against any current or former justice of the Supreme Court of
the United States, including Justice Thomas, including those
likening him to an ``Uncle Tom'' figure or any other repugnant
stereotype;
(2) condemns racial attacks on any government official or
person merely for expressing a view that some deem
``conservative'';
(3) recognizes the importance of judging a person on the
basis of the merits of his ideas and the content of his
character, rather than on the basis of offensive and derogatory
racial stereotypes; and
(4) recognizes that Justice Thomas's jurisprudence does not
excuse racial aggression against him.
Calendar No. 199
118th CONGRESS
1st Session
S. 359
_______________________________________________________________________
A BILL
To amend title 28, United States Code, to provide for a code of conduct
for justices of the Supreme Court of the United States, and for other
purposes.
_______________________________________________________________________
September 5, 2023
Reported with an amendment