Supreme Court Ethics, Recusal, and Transparency Act of 2023

Subjects: Law, Congressional oversight, Employee performance, Government ethics and transparency, public corruption, Government information and archives, Government studies and investigations, Judges, Supreme Court


<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 359 Introduced in Senate (IS)]

&lt;DOC&gt;






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, and Ms. Hirono) 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 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,

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 
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 of the United States.
    ``(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 shall--
                    ``(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;
                    ``(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;
                    ``(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
                    ``(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.
            ``(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:
    ``(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.''.

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, 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 (c), by inserting ``justice or'' before 
        ``judge'';
            (5) in subsection (d)(4)(i), by inserting ``justice or'' 
        before ``judge''; and
            (6) 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, 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) 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.
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