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Wide-Ranging Bill Would Usher in Era of Greater Judicial Transparency


Live audio in the Supreme Court, whose justices would be required to explain their recusals and abide by a code of conduct; live video in U.S. courts of appeals; and medical exams for aging jurists – these are the tenets of a wide-ranging transparency bill introduced today by Rep. Darrell Issa that comes as nation’s attention is focused on the federal courts in a way it rarely is.

“If enacted, this bill would help the public better understand the work of the judiciary in a way that does not compromise the latter’s independence,” Fix the Court executive director Gabe Roth said in applauding the bill’s introduction. “As Rep. Issa’s bill remind us, every federal appeals court has same-day audio, and every federal judge abides by an ethics codes, so there’s no reason the high court should remain exempt, and this bill would correct that quirk.”

Broadcast access:
The bill would require the Supreme Court to implement same-day audio within a year (cf., this Grassley-Leahy letter) and live audio within two. All U.S. courts of appeals currently release audio within 24 hours of an argument, but the high court has only allowed same-day audio 27 times in its history. The bill would also require livestreamed video for appellate (non-SCOTUS) arguments; only the Second, Third and Ninth Circuits have ever allowed video, with the Seventh expected to add video capacity this fall.

Recusal explanations:
The bill also would require Supreme Court to release a “timely notice” online each time a justice is recused from a petition or argument that would include “an explanation for such recusal.” More than 100 years ago, the high court did periodically offer recusal explanations, usually due to a justice’s absence, but that practice ended in 1904. This new provision would help the public understand the justices’ conflicts of interest and would end the wild conflicts-based goose chase court-watchers engage in each week when orders are released.

Medical exams:
FTC and its allies have been advocating for the creation of judicial wellness committees nationally and in each circuit to ensure that judges and justices have the resources they need as they age – in order to identify and mitigate the effects of cognitive decline. That this bill would require physicals for all federal judges, including the justices, every two years once they reach age 70 and every year once they reach age 81 acknowledges the importance of a federal bench operating at full cognitive capacity.

Code of conduct:
In each of the last four Congresses, Democrats in the House and Senate have introduced bills that would require the justices to adopt a formal code of conduct, one that would likely mirror the Code of Conduct for U.S. Judges that the rest of the federal judiciary follows and to which the justices are not bound. Today’s bill marks the first time a GOP-led bill called for the justices and lower federal judges to be bound by the same ethical code.

The bill would also add several district judgeships across the country to reduce caseloads and make PACER more accessible to the public. These are commendable improvements yet not “fixes” this organization advocates for.

Though the bill was introduced by a Republican member today, sources in the majority tell Fix the Court they are “hopeful” that it will become a bipartisan bill.

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