FTC encourages bipartisan support of the 21st Century Courts Act
A Supreme Court code of conduct, same-day argument audio and online financial disclosures would all be compulsory within a year should a bill introduced Friday by prominent members of the House Judiciary and Appropriations Committees be enacted. The bill comes as major abortion and executive power cases at SCOTUS this week will be argued without expedited audio access.
The 21st Century Courts Act (H.R. 6017) – sponsored by Courts Subcommittee Chair Hank Johnson, full Judiciary Committee Chair Jerry Nadler and Congressional Transparency Caucus Chair Mike Quigley – would also require within two to three years a streamlined, searchable PACER that’d be free for all users, plus live audio for all Supreme Court and circuit court hearings. Public explanations for judicial recusal decisions would be obligatory upon passage.
Fix the Court, which worked on the bill with congressional and nonprofit partners over the last year, is calling on members in both parties to add their names to it.
FTC executive director Gabe Roth said: “An independent judiciary requires the public’s confidence in the impartiality of judges and justices. Ensuring that the Supreme Court abides by a code of conduct, that every level of the judiciary better accounts for conflicts of interest and that all Americans have unfettered access to court documents – as this bill calls for – would go a long way toward building that confidence.”
“The bill further recognizes that most Americans are unable to take off work and travel to a courthouse to experience appellate arguments in person and so provides for critical real-time broadcast access to these proceedings. I am grateful to Reps. Johnson, Nadler and Quigley for demonstrating such a strong commitment to improving transparency and accountability in our federal courts and expect a robust, bipartisan group of cosponsors shortly,” Roth added.
A recent predecessor of 21CCA, last Congress’ Judiciary ROOM Act, which passed House Judiciary by voice vote in Sept. 2018, would have similarly required improved broadcast access in appeals courts, a SCOTUS ethics code and public recusal explanations. At the time, some legislators objected to the inclusion of provisions like medical exams for judges and video-recording in circuit courts, and others bristled that it was unclear how free PACER would be paid for. The bill did not reach the House floor.
As a result of the impasse, at the start of this congressional session 18 organizations from the government transparency, civic engagement and media trades – led by FTC, Project on Government Oversight and the R Street Institute – asked House and Senate leaders to craft new court reform legislation comprising principles that, implemented together, would vastly improve transparency and accountability in the judiciary. Rather than proposing specific legislation at the start, the groups united behind overarching ideas, which led to productive discussions with House Judiciary leadership over the last 14 months, including hearings before the Courts Subcommittee last June and September, and resulted in the legislative language introduced today.
21CCA addresses six major items that court reformers have long considered ripe for congressional action.
1. Supreme Court code of conduct: The bill would require the Supreme Court to write and publish a formal code of conduct for itself. The ROOM Act had the Judicial Conference completing this task, but 21CCA removes any constitutional concerns of lower court judges telling SCOTUS how to act. Famously, the Supreme Court is the only Article III court not subject to any code of conduct.
2. Recusal explanations: The bill would require a brief written explanation for conflict-based disqualifications at the Supreme Court and lower court level, modeled after the recusal guidelines already prescribed by federal law (28 U.S.C. §455). Justices are already subject to the disclosure law, and the required public disclosure would simply increase transparency. When personal privacy would be implicated, an explanation would not be required.
3. Online financial disclosures: The bill would require that the judiciary publish online within 90 days the financial disclosures that it already collects from federal judges and justices. These disclosures are ostensibly for public consumption and public accountability, and watchdogs like FTC routinely make them available online. The request process, however, can take many months if not years. The proper redactions would be made before publication, assuaging privacy concerns.
4. Expanded audio of appellate oral argument: The bill would require same-day audio for Supreme Court arguments and opinion announcements within one year and live audio within two. It would also require live audio of circuit court arguments: en banc panels within one year; all panels within two. Four circuits (CA2, CA4, CA9 and CADC) permit live audio to varying degrees, and this would ensure that, in the future, federal appeals courts grant the same basic broadcast access.
5. Electronic case management system modernization: The bill would streamline and standardize the case management system across the federal judiciary, improving accessibility and ensuring consistency across the judiciary. This would allow researchers to access files in a searchable, unified format, reducing the prohibitive expensive and time currently required for searches.
6. Public access to PACER: The bill would make PACER free for all users. This would be offset by collecting some additional fees from so-called power users (commercial entities currently paying more than $25,000 per quarter) for two to three years; after that, the new PACER would be paid for via a non-IFP filing fee increase, marginal additional bankruptcy fees and a fee paid by the Department of Justice to access the system based on the agency’s current use of PACER.