II 117th CONGRESS 2d Session S. 4010 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.

1. Short title This Act may be cited as the 21st Century Courts Act of 2022 . 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: 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. . 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. . 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. 5. Amicus disclosure (a) In general Chapter 111 of title 28, United States Code, is amended by adding at the end the following: 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. . 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. . 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, . 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: 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: 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. . 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: 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. . 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.