On Monday, a week before the Supreme Court opens its new term, the court’s clerk sent a short letter to the lawyers in what was supposed to be the very first case argued. “Justice Alito has determined that he will not continue to participate in this case,” the letter said, and that was the whole explanation. Samuel Alito, the justice whose chambers had insisted as recently as May that no recusal was needed, is out of the biggest climate case to reach the court in years.
The case is Suncor Energy v. County Commissioners of Boulder County. Boulder County, the City of Boulder and San Miguel County sued ExxonMobil and Suncor Energy, seeking compensation for climate-linked damage — floods, droughts, wildfires and other extreme weather — and arguing that the companies knew for decades what their products would do while misleading the public about it. The local governments insist they are bringing ordinary state-law damage claims, not trying to set national energy policy. The companies counter that climate change is a global problem governed by federal law, and that federal authority over interstate emissions preempts the state claims. As SCOTUSblog has noted, the justices are not being asked whether fossil fuel companies caused climate change — only whether lawsuits like this one can proceed in state court at all. The answer matters well beyond Colorado: more than two dozen states, cities and local governments have filed similar suits, according to Reuters, with billions of dollars in potential damages riding on the theory.
Now the recusal mechanics, which are the interesting part. In May, a court spokeswoman told NBC News that Alito had been advised by the court’s legal counsel that “his recusal is not required,” because he had no financial interest in any party to the case. That was narrowly true: his financial disclosure shows no Exxon or Suncor stock. It does show ConocoPhillips and Phillips 66, plus five other energy-sector firms. There was already awkward history here — back in 2023, Alito sat out when the court turned away appeals in the Colorado litigation and in related cases involving ConocoPhillips and Phillips 66. In May, a court spokesman explained that he had “inadvertently recused” back then, which is a funny thing for a justice to do by accident.
What changed is that earlier this month the advocacy group Consumer Watchdog pointed to disclosures that ConocoPhillips and Phillips 66 themselves made to shareholders, warning investors of the risks they face from climate lawsuits making claims similar to Boulder’s. Translate that out of corporate-securities language: the companies Alito owns have formally told their own owners that lawsuits like this one are a threat to the business, and a broad Supreme Court ruling for Exxon and Suncor would defuse that threat for the entire industry — including the parts of it sitting in Alito’s brokerage account. The Center for Climate Integrity and Consumer Watchdog argued that this, combined with his earlier recusal in the same litigation, created at least the appearance of a conflict. “Justice Alito’s recusal ... is the right decision, and one he should have made from the start,” Alexandra Nagy, Consumer Watchdog’s organizing director, said Monday. NBC called the reversal a “major U-turn.”
It is also becoming a pattern. A 2024 Bloomberg report noted that Alito was the only justice “with a stake in more than two dozen individual companies,” while most justices own mutual funds, which don’t create the same conflicts. There is a well-established financial product for a person whose job requires not owning individual companies, and it was invented in the 1970s. Earlier this year Alito recused from another energy dispute, Chevron v. Plaquemines Parish, right before argument, with the court giving an actual reason that time: a “financial interest” in a party. An eight-member court then unanimously sided with Chevron in April. As MS NOW’s Jordan Rubin noted, if Monday’s recusal was financial too, and if Alito would have been a vote for the oil companies, then his idiosyncratic stock-picking just cost them a justice.
The practical stakes are real. Eight justices will hear the argument next Monday, and a 4-4 split would leave standing the Colorado Supreme Court ruling that Exxon and Suncor are trying to overturn. The 6-3 conservative court has often scrambled its usual ideological lines in preemption cases, per CNN, though it has ruled against environmental interests repeatedly in recent years. It takes four votes to grant review — the parties spent months preparing for a nine-member bench — and whether Alito supplied one of those votes is not public.
For completeness: some conservatives have been pushing for Justice Elena Kagan to recuse as well, over a climate-change chapter that was included in, and later removed from, a reference manual for judges to which Kagan wrote a brief foreword. She told lawmakers she never read the chapter, and she has not recused.
The court’s spokeswoman did not immediately respond to requests for an explanation of the reversal, so the official record consists of one sentence and a docket entry. If this keeps happening, the court may arrive at the conclusion every financial advisor eventually reaches with a client who insists on holding two dozen individual stocks: the problem was never the disclosure forms.