Main content

The Courts and Congress – Annual Report 2021

The Judiciary’s Workplace Policies

Companion bills that would affect Judiciary workplace policies and procedures were introduced in both houses of Congress in July 2021. Called the Judiciary Accountability Act, the legislation would extend to the judicial branch certain employment laws applicable to employees of the executive branch. It would also create an oversight commission, with some members selected and appointed by the other two branches of government, to oversee Judiciary workplace conduct issues and make significant changes to the Judicial Conduct and Disability process.

The Judicial Conference opposes the legislation on grounds that it interferes with the internal governance of the Third Branch, creates structures that compete with existing governing authorities within the Judiciary, and imposes intrusive requirements on Judicial Conference procedures.

In her role as secretary of the Conference, Judge Roslynn R. Mauskopf sent a letter (pdf) to the leadership of the House and Senate Judiciary Committees conveying the Conference’s position on the bill. She noted that the legislation “fails to recognize the robust safeguards that have been in place within the Judiciary to protect Judiciary employees, including law clerks, from wrongful conduct in the workplace, including protections against discrimination, harassment, retaliation, and abusive conduct.”

Since 2018, the Judiciary has taken numerous, substantial steps to strengthen policies, procedures, and organizational structures to help foster a safe and respectful workplace. Among the major changes were the creation of multiple avenues to report workplace conduct concerns, clarification of confidentiality policies to remove potential barriers and encourage reporting, revisions to the Codes of Conduct and Judicial Conduct and Disability Rules to emphasize that judges and other employees have a responsibility to act on potential workplace misconduct, and investments in dedicated positions at the national and circuit level to coordinate workplace culture efforts.

Public Access and Electronic Court Records

In 2021, bills that would require the Judiciary to replace its Case Management/Electronic Case Files system (CM/ECF) and establish a single, consolidated system for court records were introduced in both houses of Congress. The proposed Open Courts Act also would require that documents be made available to the public free of charge. Currently, the public gains access to records in the CM/ECF through a fee-based service known as PACER, for Public Access to Court Electronic Records. 

A similar bill was passed by the House in 2020, but the Senate took no action.

The Judiciary is committed to improving its electronic records process and the public's access to court records. Beginning in 2020, and continuing throughout 2021, the Administrative Office of the U.S. Courts (AO) worked in partnership with the General Services Administration’s 18F technology consultancy to evaluate the state of the Judiciary’s case management system and provide independent recommendations to improve usability.

The 18F group found that the system was not fully meeting its users’ needs, that its foundational technology was outdated and difficult to maintain, and that it posed cybersecurity risks. 18F recommended that the Judiciary replace the CM/ECF with a more secure and reliable system built with modern architecture, Agile development and acquisition practices, user-centered design, and integrated cybersecurity. The AO endorsed the recommendations and committed to modernizing the CM/ECF and enhancing public access to court records.

The Senate Judiciary Committee approved the bill on Dec. 9, 2021, by a voice vote.

The Senate bill requires the Judiciary to develop and deliver a modernized electronic court records system. Within three years of enactment, documents in the system would have to be publicly accessible and free of charge. The bill directs the Judiciary to temporarily increase PACER fees on the heaviest users and authorizes the Judicial Conference to prescribe court case filing fees to fund operations and maintenance costs of the system to the extent that such costs are not otherwise covered through annual appropriations. PACER’s heaviest users are for-profit companies that aggregate the data for resale.

The Judiciary has expressed concern that the bill’s provisions for replacing user fees as a major source of funding for the system are inadequate and potentially would create mission-threatening shortfalls in the Judiciary’s future budgets. Another major concern is the potential for the higher filing fees to hinder access to justice for some Americans. The AO continues to work with Congress to address the Judiciary’s concerns, including a reliable source of funding for the project.

Electronic Recording in Courtrooms

In June 2021, the Senate Judiciary Committee voted in favor of a bill to allow electronic recording and broadcasting of federal court proceedings in district and circuit courts as well as the Supreme Court.

The Judiciary has reviewed the issue of whether cameras and other recording equipment should be permitted in federal courts for many decades. The Judicial Conference has consistently expressed the view that camera coverage can do irreparable harm to a citizen’s right to a fair and impartial trial and that the intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly negative impact on the trial process. The Judiciary opposed the Senate's proposed Sunshine in the Courtroom Act of 2021.

For the past 25 years, the Judicial Conference has authorized the courts of appeals to decide individually whether to allow broadcasting of proceedings that do not involve jurors or witnesses.

Since March 2020, when courts had to restrict courthouse access because of the pandemic, district courts have been using various conferencing platforms to provide the public with real-time audio access to civil proceedings and limited audio or video access to participants in and observers of the criminal proceedings identified in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. These are stop-gap emergency measures and are limited to conferencing platforms. More traditional forms of broadcasting trial court proceedings remain prohibited by both Judicial Conference policy and Federal Rule of Criminal Procedure 53, which prohibits the photographing or broadcasting of courtroom proceedings in criminal cases.

In a letter to the Senate Judiciary Committee, Judge Roslynn R. Mauskopf, the AO Director, wrote, “The Judiciary has learned a great deal about the benefits and risks of providing audio and video access during emergency situations, and is endeavoring to determine whether, and under what circumstances, conferencing platforms and real-time audio could be used in the district courts. For example, earlier this year, the Judiciary launched a new pilot program that permits district and bankruptcy courts to livestream audio of certain civil and bankruptcy proceedings involving matters of public interest.”

Financial Disclosure

In October 2021, bills were introduced in both chambers to amend the Ethics in Government Act of 1978 to require the online publication of financial disclosure reports for federal judges. Judges also would be required to submit periodic securities transaction reports for some of their personal financial activities.

The House passed the bill, called the Courthouse Ethics and Transparency Act, on a vote of 422-4 on Dec. 1, 2021.

The bill extends the Stop Trading on Congressional Knowledge (STOCK) Act requirement for periodic stock transaction reporting to federal judicial officers and requires the online publication of financial disclosure reports. Under the legislation, the AO would establish a searchable and sortable online database for financial disclosure reports. Reports would have to be available within 90 days of the filing deadline. The Judiciary’s authority to redact the reports for security reasons would be maintained.

The House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on ethical standards in the Judiciary. Fifth Circuit Judge Jennifer Walker Elrod, chair of the Codes of Conduct Committee of the Judicial Conference, testified (pdf).

“As Chair of the Codes of Conduct Committee, and on behalf of the Judicial Conference of the United States, I assure you the federal Judiciary takes these obligations seriously,” Elrod told the subcommittee. “We have taken and will continue to take action to ensure ethical obligations, including recusal and reporting requirements, are met.”

High ethical standards and transparency are essential to an independent Judiciary and to maintaining the public’s trust, she said.

“The statutes and case law on recusal, the Code of Conduct provisions, as well as the Judiciary policies, practices, and enforcement mechanisms … are the tools and resources available to the federal Judiciary and to the public to ensure the functioning of an ethical and independent judicial branch and to enhance the public’s trust in the Third Branch,” Elrod said.

For the past 15 years, the Judicial Conference has required federal courts to use conflict checking computer software to help identify cases in which judges may have a financial conflict of interest and should disqualify themselves. Judges also are required to develop and maintain recusal lists and, with the assistance of clerk’s offices’ automated conflict screening, personally review their matters for conflicts.

Ethics education is provided regularly for judges and Judiciary employees, including law clerks, staff attorneys, clerks of court, and judicial assistants.

The Judiciary in 2021 sought to strengthen the requirements to prevent conflicts. AO Director Judge Roslynn R. Mauskopf directed Judicial Conference committees, including Codes of Conduct, Financial Disclosure, and Judicial Conduct and Disability, to review the Judiciary’s conflict screening process and submit recommendations on ways to clarify or improve it. The Judiciary also launched a study of its current case management software to improve automated detection of potential conflicts. Additional training and refresher sessions were held for judges to remind them of their obligations and increase their aptitude with conflict checking tools.

Criminal Case Administration

In June 2021, the House passed the Criminal Judicial Administration Act by voice vote. The legislation contained two provisions sought by the Judicial Conference.

One provision would improve efficiency by giving magistrate judges authority to hear post-conviction motions in misdemeanor cases in which they also presided over the sentencings. Under current law, magistrate judges have authority to try persons accused of, and sentence persons convicted of, misdemeanors. But they do not have the authority to act on subsequent related motions. The Conference favored allowing magistrate judges to adjudicate any proceedings in cases where the judge also handled the sentencing, enabling district courts to manage caseloads in a more efficient and economical manner.

The second bill provision would provide subsistence and transportation home for indigent defendants. Under current law, federal courts can order the U.S. Marshals Service to provide a released indigent defendant with transportation to the court where that individual’s appearance is required. No provision is made, however, for expenses such as food and lodging during the period of the court proceedings or return transportation home afterwards. The bill would make that possible.

A companion bill was introduced in the Senate on Nov. 29, 2021.

Other Key Legislation Affecting the Judiciary

During 2021, Congress considered additional issues related to the Judiciary, which are explained in detail in other chapters of this report. The Conference pressed Congress to pass judicial and courthouse security legislation and related funding. It also submitted requests to add critically needed judgeships in districts with sustained high caseloads, including additional bankruptcy judgeships.