Federal

Supreme Court Ethics, Recusal, and Transparency Act of 2023

Source: Congress.gov · 8,284 words in original text

What This Bill Does

This bill creates a code of ethics for Supreme Court justices and establishes procedures for investigating complaints against them. It also requires the Court to disclose ethics rules publicly and creates new rules around conflicts of interest for all federal judges.

Who It Affects

- Supreme Court justices - Federal judges in courts of appeals and district courts - Bankruptcy judges and magistrate judges - Law clerks to justices - Parties in court cases and organizations filing legal documents with courts - The Judicial Conference of the United States - The Federal Judicial Center

Key Provisions

- The Supreme Court must create a written code of conduct for justices within 180 days, after allowing public comments (Sec. 2(a)) - Supreme Court justices and law clerks must disclose gifts, income, and reimbursements following Senate and House disclosure rules (Sec. 3) - A judge or justice must step aside from a case if they or their spouse received money or gifts from a party to the case during the 6 years before the case was assigned to them (Sec. 4(a)) - Judges must immediately notify all parties if they learn of a reason they should step aside from a case (Sec. 4(d)) - Court parties and organizations filing legal briefs must disclose gifts and lobbying efforts made to any justice by them or their lawyers during the 2 years before the case began (Sec. 6) - Organizations filing "friend of the court" briefs must name anyone who contributed to writing the brief or gave them 3 percent or more of their annual income (Sec. 7(a))

What Changes

If this becomes law, Supreme Court justices will have a publicly available written ethics code for the first time. Justices and their law clerks must publicly disclose gifts and income they receive. Court cases will include information about any conflicts of interest judges or justices have. Parties in Supreme Court cases must disclose what gifts or lobbying they or their lawyers gave to justices. Organizations filing friend-of-the-court briefs must reveal their major financial supporters. A special panel of federal judges can investigate complaints about justices violating the ethics code. The rules for stepping aside from cases will be stricter and more specific, and courts must publicly explain why a judge stepped aside from a case.

Important Definitions

- "Amicus brief" means a legal document filed by an organization that is not directly involved in a case but wants to provide information to the court - "Gift, income, or reimbursement" are defined in another federal law (section 13101 of title 5) - "Lobbying contact" means activity defined in the Lobbying Disclosure Act of 1995 - "Disqualification" means a judge or justice must step aside from a case

Effective Date

The bill requires various actions within 180 days of becoming law, including creating the ethics code for Supreme Court justices and establishing procedures for complaints. Not specified in bill text for overall bill effectiveness.

II 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. BOOK- ER, 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 359 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Supreme Court Ethics, 2 Recusal, and Transparency Act of 2023’’. 3 SEC. 2. CODE OF CONDUCT FOR THE SUPREME COURT OF 4 THE UNITED STATES. 5 (a) IN GENERAL.—Chapter 16 of title 28, United 6 States Code, is amended by adding at the end the fol- 7 lowing: 8 ‘‘§ 365. Codes of conduct 9 ‘‘(a) JUSTICES.—Not later than 180 days after the 10 date of enactment of this section, the Supreme Court of 11 the United States shall, after appropriate public notice 12 and opportunity for comment in accordance with section 13 2071, issue a code of conduct for the justices of the Su- 14 preme Court. 15 ‘‘(b) OTHER JUDGES.—Not later than 180 days after 16 the date of enactment of this section, the Judicial Con- 17 ference of the United States shall, after appropriate public 18 notice and opportunity for comment in accordance with 19 section 2071, issue a code of conduct for the judges of 20 the courts of appeals, the district courts (including bank- 21 ruptcy judges and magistrate judges), and the Court of 22 International Trade. 23 ‘‘(c) MODIFICATION.—The Supreme Court of the 24 United States and the Judicial Conference may modify the 25 applicable codes of conduct under this section after giving 26 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 359 RS appropriate public notice and opportunity for comment in 1 accordance with section 2071. 2 ‘‘§ 366. Public access to ethics rules 3 ‘‘The Supreme Court of the United States shall make 4 available on its internet website, in a full-text, searchable, 5 sortable, and downloadable format, copies of the code of 6 conduct issued under section 365(a), any rules established 7 by the Counselor to the Chief Justice under section 677 8 and any other related rules or resolutions, as determined 9 by the Chief Justice of the United States, issued by the 10 Counselor to the Chief Justice of the United States or 11 agreed to by the justices of the Supreme Court. 12 ‘‘§ 367. Complaints against justices 13 ‘‘(a) RECEIPT OF COMPLAINTS.—Not later than 180 14 days after the date of enactment of this section, the Su- 15 preme Court of the United States shall establish proce- 16 dures, modeled after the procedures set forth in sections 17 351 through 364, under which individuals may file with 18 the Court, or the Court may identify, complaints alleging 19 that a justice of the Supreme Court— 20 ‘‘(1) has violated— 21 ‘‘(A) the code of conduct issued pursuant 22 to section 365(a); 23 ‘‘(B) section 455; or 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 359 RS ‘‘(C) any other applicable provision of Fed- 1 eral law; or 2 ‘‘(2) has otherwise engaged in conduct that un- 3 dermines the integrity of the Supreme Court of the 4 United States. 5 ‘‘(b) JUDICIAL INVESTIGATION PANEL.— 6 ‘‘(1) IN GENERAL.—Upon receipt or identifica- 7 tion of a complaint under subsection (a), the Su- 8 preme Court of the United States shall refer such 9 complaint to a judicial investigation panel, which 10 shall be composed of a panel of 5 judges selected 11 randomly from among the chief judge of each circuit 12 of the United States. 13 ‘‘(2) DUTIES.—The judicial investigation panel 14 shall— 15 ‘‘(A) review and, if appropriate as deter- 16 mined by the panel, investigate all complaints 17 submitted to the panel using procedures estab- 18 lished by the panel and modeled after the proce- 19 dures set forth in sections 351 through 364; 20 ‘‘(B) present to the Supreme Court of the 21 United States any findings and recommenda- 22 tions for necessary and appropriate action by 23 the Supreme Court, including dismissal of the 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 359 RS complaint, disciplinary actions, or changes to 1 Supreme Court rules or procedures; 2 ‘‘(C) if the panel does not recommend dis- 3 missal of the complaint, not later than 30 days 4 following the presentation of any findings and 5 recommendations under this paragraph, publish 6 a report containing such findings and rec- 7 ommendations; and 8 ‘‘(D) if the panel recommends dismissal of 9 the complaint, the panel may publish any find- 10 ings and recommendations if the panel deter- 11 mines that such publication would be in fur- 12 therance of the public interest. 13 ‘‘(3) POWERS.—In conducting any investigation 14 under this section, the judicial investigation panel 15 may hold hearings, take sworn testimony, issue sub- 16 poenas ad testificandum and subpoenas duces 17 tecum, and make necessary and appropriate orders 18 in the exercise of its authority. 19 ‘‘(4) ACCESS.—If the judicial investigation 20 panel determines that a substantially similar com- 21 plaint was previously submitted under section 351, 22 but that such substantially similar complaint was 23 dismissed for lack of authority to review or act upon 24 such complaint, the panel shall have access to any 25 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 359 RS information gathered pursuant to this chapter in re- 1 lation to such substantially similar complaint. 2 ‘‘(5) COMPENSATION.—The judicial investiga- 3 tion panel may appoint and fix the compensation of 4 such staff as it deems necessary.’’. 5 (b) TECHNICAL AND CONFORMING AMENDMENT.— 6 The table of sections for chapter 16 of title 28, United 7 States Code, is amended by adding at the end the fol- 8 lowing: 9 ‘‘365. Codes of conduct. ‘‘366. Public access to ethics rules. ‘‘367. Complaints against justices.’’. SEC. 3. MINIMUM GIFT, TRAVEL, AND INCOME DISCLOSURE 10 STANDARDS FOR JUSTICES OF THE SUPREME 11 COURT. 12 Section 677 of title 28, United States Code, is 13 amended by adding at the end the following: 14 ‘‘(d) The Counselor, with the approval of the Chief 15 Justice, shall establish rules governing the disclosure of 16 all gifts, income, or reimbursements, as those terms are 17 defined in section 13101 of title 5, received by any justice 18 and any law clerk to a justice. Such rules shall, at min- 19 imum, require disclosure of any information concerning 20 gifts, income, and reimbursements required to be disclosed 21 under the Standing Rules of the Senate and the Rules of 22 the House of Representatives.’’. 23 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 359 RS SEC. 4. CIRCUMSTANCES REQUIRING DISQUALIFICATION. 1 (a) ANTICORRUPTION PROTECTIONS.—Subsection 2 (b) of section 455 of title 28, United States Code, is 3 amended by adding at the end the following: 4 ‘‘(6) Where the justice or judge knows that a 5 party to the proceeding or an affiliate of a party to 6 the proceeding made any lobbying contact, as de- 7 fined in section 3 of the Lobbying Disclosure Act of 8 1995 (2 U.S.C. 1602), or spent substantial funds in 9 support of the nomination, confirmation, or appoint- 10 ment of the justice or judge. 11 ‘‘(7) Where the justice or judge, their spouse, 12 minor child, or a privately held entity owned by any 13 such person received income, a gift, or reimburse- 14 ment, as those terms are defined in section 13101 15 of title 5— 16 ‘‘(A) from a party to the proceeding or an 17 affiliate of a party to the proceeding; and 18 ‘‘(B) during the period beginning on the 19 date that is 6 years before the date on which 20 the justice or judge was assigned to the pro- 21 ceeding and ending on the date of final disposi- 22 tion of the proceeding.’’. 23 (b) DUTY TO KNOW.—Subsection (c) of section 455 24 of title 28, United States Code, is amended to read as 25 follows: 26 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 359 RS ‘‘(c) A justice, judge, magistrate judge, or bankruptcy 1 judge of the United States shall ascertain— 2 ‘‘(1) the personal and fiduciary financial inter- 3 ests of the justice or judge; 4 ‘‘(2) the personal financial interests of the 5 spouse and minor children residing in the household 6 of the justice or judge; and 7 ‘‘(3) any interest of the persons described in 8 paragraph (2) that could be substantially affected by 9 the outcome of the proceeding.’’. 10 (c) DIVESTMENT.—Subsection (f) of section 455 of 11 title 28, United States Code, is amended by inserting 12 ‘‘under subsection (b)(4)’’ after ‘‘disqualified’’. 13 (d) DUTY TO NOTIFY.—Section 455 of title 28, 14 United States Code, is amended by adding at the end the 15 following: 16 ‘‘(g) If at any time a justice, judge, magistrate judge, 17 or bankruptcy judge of the United States learns of a con- 18 dition that could reasonably require disqualification under 19 this section, the justice or judge shall immediately notify 20 all parties to the proceeding.’’. 21 (e) TECHNICAL AND CONFORMING AMENDMENTS.— 22 Section 455 of title 28, United States Code, as amended 23 by this section, is amended— 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 359 RS (1) in the section heading, by striking ‘‘judge, 1 or magistrate judge’’ and inserting ‘‘judge, 2 magistrate judge, or bankruptcy judge’’; 3 (2) in subsection (a), by striking ‘‘judge, or 4 magistrate judge’’ and inserting ‘‘judge, magistrate 5 judge, or bankruptcy judge’’; 6 (3) in subsection (b)— 7 (A) in paragraph (2), by striking ‘‘the 8 judge or such lawyer’’ and inserting ‘‘the jus- 9 tice, the judge, or such lawyer’’; 10 (B) in paragraph (5)(iii), by inserting 11 ‘‘justice or’’ before ‘‘judge’’; and 12 (C) in paragraph (5)(iv), by inserting ‘‘jus- 13 tice’s or’’ before ‘‘judge’s’’; 14 (4) in subsection (c), by inserting ‘‘justice or’’ 15 before ‘‘judge’’; 16 (5) in subsection (d)(4)(i), by inserting ‘‘justice 17 or’’ before ‘‘judge’’; and 18 (6) in subsection (e), by striking ‘‘judge, or 19 magistrate judge’’ and inserting ‘‘judge, magistrate 20 judge, or bankruptcy judge of the United States’’. 21 (f) PUBLIC NOTICE.—The rules of each court subject 22 to section 455 of title 28, United States Code, as amended 23 by this section, shall be amended to require that the clerk 24 shall publish timely notice on the website of the court of— 25 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 359 RS (1) any matter in which a justice, judge, mag- 1 istrate judge, or bankruptcy judge of the United 2 States is disqualified under such section; 3 (2) any matter in which the reviewing panel 4 under section 1660 of title 28, United States Code, 5 rules on a motion to disqualify; and 6 (3) an explanation of each reason for the dis- 7 qualification or ruling, which shall include a specific 8 identification of each circumstance that resulted in 9 such disqualification or ruling, but which shall not 10 include any private or sensitive information deemed 11 by a majority of the reviewing panel under section 12 1660 of title 28, United States Code, as added by 13 section 5 of this Act, to be appropriate for redaction 14 and unnecessary in order to provide the litigants and 15 public a full understanding of the reasons for the 16 disqualification or ruling. 17 SEC. 5. REVIEW OF CERTIFIED DISQUALIFICATION MO- 18 TIONS. 19 (a) IN GENERAL.—Chapter 111 of title 28, United 20 States Code, is amended by adding at the end the fol- 21 lowing: 22 ‘‘§ 1660. Review of certified motions to disqualify 23 ‘‘(a) MOTION FOR DISQUALIFICATION.—If a justice, 24 judge, magistrate judge, or bankruptcy judge of the 25 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 359 RS United States is required to be disqualified from a pro- 1 ceeding under any provision of Federal law, a party to 2 the proceeding may file a timely motion for disqualifica- 3 tion, accompanied by a certificate of good faith and an 4 affidavit alleging facts sufficient to show that disqualifica- 5 tion of the justice, judge, magistrate judge, or bankruptcy 6 judge is so required. 7 ‘‘(b) CONSIDERATION OF MOTION.—A justice, judge, 8 magistrate judge, or bankruptcy judge of the United 9 States shall either grant or certify to a reviewing panel 10 a timely motion filed pursuant to subsection (a) and stay 11 the proceeding until a final determination is made with 12 respect to the motion. 13 ‘‘(c) REVIEWING PANEL.— 14 ‘‘(1) IN GENERAL.—A reviewing panel to which 15 a motion is certified under subsection (b) shall be 16 composed of 3 judges selected at random from 17 judges of the United States who do not sit on the 18 same court— 19 ‘‘(A) as the judge, magistrate judge, or 20 bankruptcy judge who is the subject of the mo- 21 tion; or 22 ‘‘(B) as the other members of the review- 23 ing panel. 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\S359.RS S359 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 359 RS ‘‘(2) CIRCUIT LIMITATION.—Not more [Text truncated for display. Full text available on Congress.gov.]

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