S. 4188 — Introduced in Senate

II 117th CONGRESS 2d Session S. 4188 IN THE SENATE OF THE UNITED STATES May 11 (legislative day, May 10), 2022Mr. Whitehouse (for himself, Mr. Blumenthal, Mr. Booker, Mrs. Feinstein, Ms. Hirono, Mr. Leahy, and Mr. Schatz) 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. 1. Short title This Act may be cited as the Supreme Court Ethics, Recusal, and Transparency 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 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 and employees of the Supreme Court. (b) 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 and employees of the courts of appeals, the district courts (including bankruptcy judges and magistrate judges), and the Court of International Trade. (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 in accordance with section 2071. . (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. 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, travel, and income received by any justice and any law clerk to a justice. Such rules shall at minimum require disclosure of any information concerning gifts, travel, and income required to be disclosed under the Standing Rules of the Senate and the Rules of the House of Representatives. . 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 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— (A) received income, a gift, or reimbursement (as such terms are defined in the section 109 of the Ethics in Government Act of 1978 (5 U.S.C. App.)) from a party to the proceeding or an affiliate of a party to the proceeding; and (B) such receipt occurred during the period beginning 6 years prior to 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 such persons 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 further 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 Act, 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. 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: 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 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. (d) Supreme court review The Supreme Court of the United States shall be the reviewing panel for a motion seeking to disqualify a justice. . (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. . 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 their petition or brief a description and value of— (1) any gift, income, or reimbursement (as such terms are defined in section 109 of the Ethics in Government Act of 1978 (5 U.S.C. App.)) 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 or amicus, or their affiliates; (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. 7. Amicus disclosure (a) In general Chapter 111 of title 28, United States Code, as amended by section 5, is further amended by adding at the end the following: 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 further amended by adding at the end the following: 1661. Disclosures related to amicus activities. . 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. 9. Studies and evaluations (a) In general Not later than December 31, 2022, 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. (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) Facilitation of studies The Director of the Federal Judicial Center shall maintain a record of each instance in which— (1) 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 (2) a justice, judge, magistrate judge, or bankruptcy judge of the United States disqualifies after a case assignment is made. (d) GAO review Not later than 1 year after the date of enactment of this Act, and every 5 years thereafter, the Comptroller General of the United States shall submit to Congress a report containing an evaluation of the methodology and findings of the study required under subsection (a) and the audit required under section 1661 of title 28, United States Code, as added by section 7 of this Act.