The Supreme Court announced Monday that Justice Samuel Alito won’t participate in the first case that will be argued in the new court term, which kicks off in just a week.
The surprise announcement follows a previous statement from the court that Alito was advised by the court’s counsel that, despite his energy stock holdings, his recusal wasn’t required in the appeal from oil and gas companies seeking to avoid state court liability for alleged damage from climate change.
The news appeared in the form of a letter published on the docket in Suncor v. Boulder, stating only that Alito “has determined that he will not continue to participate in this case.”
Although the letter gave no explanation for the last-minute exit, the George W. Bush appointee’s idiosyncratic investment practices have prevented him from participating in previous cases. A 2024 Bloomberg report noted that he was the only justice “with a stake in more than two dozen individual companies” and that most justices own mutual funds, which don’t create the same conflicts posed by individual stocks.
The financial conflict issue led Alito to recuse from another energy case earlier this year right before it was argued. Notably, in that prior case, Chevron v. Plaquemines Parish, the court provided an explanation for his recusal, writing that it was due to a “financial interest” in a company that was a party in the litigation. Alito’s absence doesn’t seem to have mattered to the outcome in the Chevron case, in which an eight-member court unanimously sided with the company in April.
The effect of his absence in the Suncor case, which presents different legal issues, remains to be seen. A 4-4 deadlock would effectively uphold the Colorado Supreme Court ruling that Exxon Mobil and Suncor Energy want the justices to overturn. Next Monday’s hearing before an eight-member bench could give a sense of where the case is headed, but we won’t know the answer until the court rules. The justices typically resolve the term’s argued cases by July.
It takes four justices to grant review of a petition, and it’s unclear whether Alito was one of them here because the vote isn’t public. The parties have already filed their briefs in the case and presumably had been preparing to argue before a nine-member bench.
Whatever the effect of Alito’s absence in this case, if he recused for financial reasons again, then this marks the latest instance of him not being able to ethically participate in a case due to his investment practice. If so, and if he was going to be a vote for the companies in this case, then his practice lost them a vote here.
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