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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4010 Introduced in Senate (IS)]

<DOC>

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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