21st Century Courts Act would require ethics code, stronger recusal, travel and amicus disclosure rules
Fix the Court today is praising the introduction of a bicameral bill that would revamp the ethics, recusal and travel rules for the federal judiciary, including the Supreme Court, and beat back the branch’s wholesale, years-long refusal to abide by best practices in government accountability.
Though work on the 21st Century Courts Act of 2022 began at the start of the 117th Congress more than a year ago, and though several sections mirror the 21st Century Courts Act of 2020, this legislation is expanded and takes on new urgency in the wake of revelations last month that Justice Thomas’ wife Ginni sought to overturn the election results while Thomas was ruling on several 2020-related cases.
Legal scholars and FTC believe Thomas should have recused from these cases and a recent Jan. 6 Committee case since, among other reasons, Ginni had a stake in the outcome and since text messages she wrote to Mark Meadows imply she may have discussed her efforts with her husband.
Among the bill’s more impactful proposals, it would:
— Require the justices to finally write and abide by an official code of conduct;
— Require a brief explanation whenever a judge or justice recuses from a case or petition;
— Create a process in the lower courts by which a party may submit a motion for recusal that would be reviewed by judges from other courts;
— Create a process at the Supreme Court by which a party may submit a motion for recusal that would be reviewed by all nine justices; and
— Expand the federal recusal law to require disqualification when a judge or justice has received within the previous six years income, travel reimbursement or a gift from a party or their counsel.
“This bill would finally bring the Supreme Court into the modern era through measures of transparency that are rational, apolitical and plainly constitutional,” Fix the Court’s Gabe Roth said.
“Frankly,” Roth added, “it’s pretty pathetic that Congress has to step in and legislate fixes to the third branch’s appallingly lax rules on ethics, recusal, travel and more. The judiciary, including the Supreme Court, could implement all of these changes itself, and their opposition to these or any reforms that would deliver a measure of accountability is unjustifiable. Thankfully, leaders in Congress like Sen. Whitehouse, Rep. Johnson and several of their colleagues have not been deterred by this hostility, and they’re making a strong statement today about what a modern, respected, conflict-free judiciary should look like.”
The bill also incorporates 2019’s bipartisan Judicial Travel Accountability Act, which would require judges and justices to file the same post-travel disclosure reports — noting the party who paid for a free trip, what they paid for and how much it cost — that members of Congress are required to file.
In addition, it modernizes the rules for sealing documents (harder to do), amicus filings (more funding transparency), broadcast (live video of SCOTUS arguments and opinion announcements and of circuit court arguments) and conflict checks (judges and justices must keep apprised of any non-monetary interest they or their spouse has that could be substantially affected by a case, and court clerks must track each time the conflict-check software skips a conflicted judge in the case assignment process).
Many of the bills’ provisions are bipartisan. For example, a SCOTUS ethics code, recusal explanations and live video of appellate arguments were part of the GOP-led Judiciary Room Act of 2018, which passed House Judiciary unanimously. The Sen. Whitehouse-authored travel bill was bipartisan in the House.
The 2022 version of the bill does not include two 2020 provisions that are now covered by other bills: online disclosures for judges and justices are in the Courthouse Ethics and Transparency Act, and free PACER is in the Open Courts Act.
— On Monday, Justice Barrett was asked about whether there should be rules governing judicial spouses’ political activity in order to avoid appearances of impropriety, and she said unironically, “Everybody” — i.e., the spouses — “is very attentive to those kinds of things.”
— The six-year timeframe on the trips and gifts that compel recusal is because six years is how long, by law, the judiciary holds on to judges’ and justices’ financial disclosure reports.
— This bill includes points 1 (ethics code), 3 (recusal law expansion) and 6 (ability to strike conflict-inducing amicus briefs) of FTC’s 10-point plan to respond to the Thomas scandal.