JONATHAN TURLEY: Justice Alito blazes the ethical path the Supreme Court should take
Supreme Court Justice Samuel Alito stepped aside from a landmark climate-change liability case on Sept. 28, a move that reshapes the high court's internal dynamics just as a pivotal argument approaches.
The recusal concerns Suncor Energy Inc. v. County Commissioners of Boulder County, a case testing whether energy companies can be held liable for public and private nuisance, trespass, unjust enrichment and civil conspiracy tied to climate change. Filed by Boulder County and the city of Boulder, Colorado, the lawsuit alleges the companies knowingly contributed to global warming while misleading the public about its impacts. A Colorado Supreme Court ruling earlier this year sided with the locality, determining the suits are not barred by federal preemption, potentially opening the door to thousands of similar claims nationwide.
Alito’s departure, announced via a letter from Supreme Court Clerk Scott Harris, removes him from the Oct. 5 oral argument and leaves the bench at eight justices. In a court where ideologically divided cases often hinge on a single vote, the loss of one conservative colleague means that if another justice recuses—or if the court deadlocks—the lower court’s ruling in favor of the plaintiffs would stand by default. Observers noted that Alito was widely expected to side with the energy companies, making his absence a significant blow to those hoping for a sweeping reversal.
The recusal has reignited debate over financial conflicts within the nation’s highest tribunal. Critics, including about three dozen advocacy groups, had pressed for Alito’s removal, arguing that his holdings in energy-related companies create even the appearance of bias. The Court’s public response emphasized that Alito has no direct financial stake in the parties to the case, yet acknowledged he holds investments in other energy firms. The justice has a track record of stepping back from similar disputes; he recused himself earlier this year from another oil-industry matter, a pattern that underscores the tension between judicial duties and personal portfolios.
Beyond this single case, the episode spotlights a longstanding institutional gap. Unlike most federal officials, Supreme Court justices are not required to place their investments in blind trusts under the Ethics in Government Act of 1978. They do file publicly available financial disclosure forms, but those reports can reveal holdings in broad sectors, leaving room for questions about impartiality. Proponents of blind trusts argue that, like other high-level government employees, justices should relinquish day-to-day control and knowledge of specific assets to avoid even the appearance of conflict. Opponents note the added complexity and cost, though some suggest diversified mutual funds or exchange-traded funds as a middle ground—though even those don’t fully shield a justice from knowing the general categories of their investments.
The issue is not new. In 2008, four justices—including Chief Justice John Roberts and Samuel Alito himself—recused from a major case involving a $400 billion lawsuit, a move that forced the court to affirm an appellate ruling without full oral argument. That episode, along with recurring calls for reform, has fueled ongoing discussion about whether the court should adopt binding or voluntary ethics measures.
With oral argument set for later this month and the justices now operating with one fewer member, all eyes will be on how the remaining eight deliberate—and whether the court’s composition shifts again before a final decision emerges. The case could reshape climate litigation across the country, and for now, the high court’s balance hangs in the recusal of a single justice.
