The Volokh Conspiracy

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Supreme Court

As Suncor Approaches, Justice Alito Recuses

The petitioners appear to lose a vote they might need in Suncor Energy v. Boulder County.

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One week from today, the Supreme Court will open its term with oral argument in Suncor Energy v. Boulder County. This case, concerning whether federal law or the constitution preempts state-law claims for damages allegedly caused by climate change, is almost certainly the most significant case of the Supreme Court's October sitting, and may be among the most consequential of the entire OT 2026 term.

This morning, the Court delivered unwelcome news to the Suncor petitioners: Justice Alito is out. According to a letter to counsel from the Clerk of Court, "Justice Alito has determined that he will not continue to participate in this case."

Justice Alito's recusal is likely bad news to the petitioners as he is among the more preemption-friendly justices on the Court, having dissented in both Virginia Uranium v. Warren and Hencely v. Fluor (both of which were recent 6-3 decisions rejecting preemption). Like most observers, I have assumed that Justice Alito was among the most likely to side with the petitioners claims (along with the Chief and Justice Kavanaugh).

Justice Alito's recusal is likely a result of his ownership of individual energy company stocks. While he does not own any shares in any of the companies that are before the Court in Suncor, he does own stocks in companies that have been subject to similar suits (and has recused in other cases accordingly). So I suspect that is what caused the recusal here. What is more difficult to explain than the decision to recuse is the timing: Why now? Calls for Justice Alito to recuse were made much earlier--and were previously rejected. Assuming his stock ownership is the reason for the recusal, this should serve as a reminder that judges should own mutual funds instead of individual stocks.

Before news of Justice Alito's recusal decision broke, I participated in a Federalist Society "Seat at the Sitting" webinar in which Suncor was a major focus. For those interested, here's the video:

And for those interested, here are my prior posts on this subject:

Free Speech

Free Speech Unmuted: Can the President Kick Reporters out of the White House?

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When President Trump moved to bar CNN, MSNOW, and Politico from the White House over "biased" coverage, it set off a fast-moving legal showdown. My co-host Jane Bambauer I break down why the law was surprisingly clear-cut. Drawing on a 50-year-old D.C. Circuit precedent and a fresh ruling on Oval Office access, they explain the crucial distinction between the press briefing room (a forum where reporters can't be excluded based on viewpoint) and the Oval Office (the president's own turf, where he can talk to whomever he wants). Plus: the due process twist that let a judge sidestep the First Amendment question entirely, the White House's slow-motion compliance with the restraining order, and why "the First Amendment is not a Freedom of Information Act."

Also check out our past episodes:

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A Few More Thoughts On The Missouri Ruling

When electoral chaos is on the horizon, nothing else matters.

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Friday evening, shortly before I signed off, I was able to dash out a very short post on my phone about the Missouri redistricting case. Over the past 25 hours, without the distraction of any screens, I've had some more time to reflect on the ruling. Here are some more thoughts.

First, I found the Court's discussion of standing in a footnote to be completely unsatisfactory.

We conclude that at least one of the applicants has standing on appeal.

There were two applicants. (1) People not Politicians and (2) Richard Von Glahn. The number of applicants with standing can be as low as one and as high as two. This isn't a guessing game. What does it mean that "at least one of the applicants has standing." Why doesn't the Court just tell us which of the two applicants have standing? Judge Stras's concurrence in the Eighth Circuit offered a compelling argument why neither party has standing. The Supreme Court can't just assume that one of the parties has standing, without telling us which one.

What happened here? I can think of a few possibilities. Perhaps the Court's conservatives did not agree on which of the two applicants had standing, so they dodged the issue. Or, the majority didn't really care whether any party had standing, so they used this conjectural language. I lean towards the latter. I think the upshot of Purcell is that when electoral chaos is on the horizon, jurisdiction no longer matters.

Second, the discussion of the merits is also unsatisfying.

On the merits, the Court's precedents have not previously stated that Article I, Section 2 requires a state to use the primary election map in a general election, and given that the equities heavily favor staying this late-breaking intervention, it suffices that the merits are not entirely clearcut.

The Applicants are entitled to relief if they can make a clear showing that they are likely to succeed on the merits. Justice Jackson has made this point more times than I can count. But by the majority's own admission, the applicant don't even come remotely close to satisfying that burden. Instead, the upshot of Purcell is that when when electoral chaos is on the horizon, the merits no longer matters.

Third, the Court faults the Eighth Circuit for failing to understand the previous one sentence ruling:

Given this Court's two prior orders in this litigation, our conclusion that this was error should come as no surprise.2 Consistent with this Court's September 10 stay order, we therefore must now stay the District Court's new September 21 and September 22 injunctions3 and the Eighth Circuit's September 21 mandate and September 22 order.4

I have written how some lower court judges have been deliberately obtuse while parsing emergency docket rulings. But here, I have some sympathy for the Eighth Circuit. Judge Stras offered some remarks at a pre-scheduled event at William & Mary:

"They release these short orders that are sometimes really unclear to the circuit courts," said Judge David Stras, an appointee of President Donald Trump who sits on the US Court of Appeals for the Eighth Circuit. Stras spoke Saturday during an event hosted by William & Mary Law School in Williamsburg, Va.

Stras defended the court, saying that they're often in a hard position. Depending on the case, he said, there are good reasons for writing more or writing less.

"I don't know where the happy medium is," he said.

He said it would've been "incredibly helpful" in the Missouri case for the justices to explain what, if anything, was left for the lower courts to decide after the Supreme Court stayed an order directing the state to use a redrawn map favoring the GOP earlier this month.

"It would have been better to have a little bit more, in terms of tell us what to do," Stras said. "What's off limits and what can we look at?"

My understanding of the prior rulings was that the Supreme Court rejected the federal rulings based on the AISG doctrine. The Amars and other praised Justice Kavanaugh for promoting a due respect for federalism. But now the Court tells us that the September 25 order is "consistent" with the earlier orders. Therefore, the earlier rulings were not about AISG at all. Perhaps the praise of Justice Kavanaugh was premature? Rather, the rulings were all about Purcell. Here, the upshot of Purcell is that when electoral chaos is on the horizon, the equities are the only valid basis for an emergency docket ruling.

Fourth, the Court took some gratuitous shots at the Missouri Secretary of State:

Moreover, in this case, the Missouri SupremeCourt was not responsible for the late-breaking changes. On the contrary, in an opinion back in May 2026, well before the primary election, the Missouri Supreme Court stated that the 2025 map would not take effect until approved by the voters in an intervening referendum, at least if the referendum petition was legally sufficient. So in the several-month period before the August primary election, the Missouri Secretary of State was well aware that conducting the August primary election with the 2025 map carried significant risks. The Secretary nonetheless chose to proceed with the 2025 map for the primary.

I don't have time to go into all the details, but let's just say this accounting of the facts is disputed by Missouri. But the Court simply accepted one side's statement of the facts. Again, the upshot of Purcell is that when electoral chaos is on the horizon, the Supreme Court will settle disputed facts on the emergency docket.

Indeed, the Court showed disrespect for a sovereign state by giving only 14 hours to submit a reply, and then taking two whole days to prepare a five-page opinion. There was a lower-court stay in place so there was no need to make Missouri pull yet another all-nighter--especially since it was clear that relief was already going to be denied. I think the Justices were annoyed here, and just didn't care.

This ruling is unsatisfying in so many regards.

When Making a Statutory Argument, It Helps To Read the Statute

A quick rejoinder to Ben Zycher on the EPA's rescission of the endangerment finding.

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In the Fall 2026 issue of Regulation, Ben Zycher argues that my critique of the Environmental Protection Agency's decision to rescind the "endangerment finding" which triggered the regulation of greenhouse gas emissions from new motor vehicles under the Clean Air Act is "deeply problematic." I appreciate that Zycher took the time to respond to my essay, but I think his analysis misses the mark.

I hope to have a full response to Zycher in due course. For the moment, I wanted to point out a serious error in Zycher's attempt at legal analysis.

Zycher writes:

Adler … notes:

Section 111 of the Clean Air Act … only applies to emissions from sources that "cause or contribute significantly" to the air pollution at issue, suggesting the EPA need not—indeed, perhaps, cannot—regulate sources of de minimis contributions under that provision. The absence of any such qualification in Section 202, however, is a mortal blow to the EPA's position."

That argument cannot be correct. In the context of Section 202(a), "cause or contribute significantly" is replaced with "reasonably be anticipated to endanger public health or welfare." Is Adler ignoring this language, or is he actually arguing that GHG emissions yielding temperature effects almost literally equal to zero nonetheless can "reasonably be anticipated to endanger public health or welfare"?

Zycher's claim here that "in the context of Section 202(a), 'cause or contribute significantly' is replaced with 'reasonably be anticipated to endanger public health or welfare'" is simply wrong, as a moment's review of the relevant statutory text would have demonstrated.

As I noted in my essay, Section 111 requires that the EPA adopt emission standards for a category of stationary sources if that category "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare."

Section 202(a) provides, in relevant part:

The Administrator shall by regulation prescribe  . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles . . .  which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. (Emphasis added.)

"Cause or contribute significantly" in Section 111 is not "replaced with 'reasonably be anticipated to endanger public health or welfare'" in Section 202, as the "reasonably be anticipated to endanger public health or welfare language" appears in both Section 202 and Section 111, word for word. The relevant difference between the two provisions, as I noted in my essay, is the insertion of the word "significantly," indicating that a significant contribution is required under Section 111, but not under Section 202.

So, is Zycher ignoring this language or did he not even read it?

Zycher also tries to claim the Section 202 requires the Administrator to find that emissions from new motor vehicles themselves "endanger public health or welfare." Again he ignores the relevant text. Section 202 requires that the vehicles in question "contribute to" the air pollution that "may reasonably be anticipated to endanger public health or welfare"--not that the emissions from the vehicles themselves endanger public health. Put another way, it is the air pollution to which the vehicle emissions contribute that must be reasonably anticipated to endanger public health or welfare, not the vehicular emissions in isolation. Zycher may think this is irrational or unwise (and I may even agree), but that does not change what the law says.

There is more I could say about Zycher's reply. For now I'll simply note that before Zycher suggests someone else is "ignoring" statutory language, he might want to give it a careful read for himself.

Birthright Citizenship

The Road Not Taken in Trump v. Barbara

A brief essay on why the Court should have decided the Birthright Citizenship case on statutory grounds.

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My brief essay, "The Road Not Taken in Trump v. Barbara," is now online as part of a Harvard Journal of Law & Public Policy Per Curiam symposium, "The Future of Birthright Citizenship: What's Next After Trump v. Barbara."

My essay begins:

It is a "well-established principle" that the Supreme Court "will not decide a constitutional question if there is some other ground upon which to dispose of the case." This principle was nowhere to be found in Chief Justice Roberts's opinion for the Court in Trump v. Barbara. It may be the Court's "usual practice" to resolve cases on statutory grounds so as to "avoid the unnecessary resolution of constitutional questions." In Barbara, however, the statutory question received no attention in the Chief Justice's opinion. Nor did it attract meaningful engagement from any of the dissents. Justice Kavanaugh was the only Justice to take the statutory arguments seriously, and he found them dispositive.

Resolving Barbara on statutory grounds would have allowed the Court to avoid the larger Constitutional question. It might also have provided a basis for broader agreement among the Justices. While there is a heated debate as to the original public meaning of the Fourteenth Amendment's Citizenship Clause, the meaning of Section 1401 at the time it was adopted is more readily resolved. It is well-established—if not universally observed—that the Court should "interpret statutory terms to 'mean what they conveyed to reasonable people at the time they were written." As the Court reaffirmed in Loper Bright Enterprises v. Raimondo, "every statute's meaning is fixed at the time of enactment."

A PDF of the full essay is here.

Other contributors to the symposium posted thus far include Gene Hamilton, Eric Wessan, Steven J. Menashi & Elias Neibart. There is also a debate between John Yoo and Linda Denno.

Free Speech

May President Trump Exclude CNN from Air Force One? Very Likely Yes

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After being blocked in his attempt to keep CNN out of the White House altogether (including the main press briefing room), President Trump has excluded CNN from traveling with him on Air Force One. This, though, he is quite likely allowed to do.

As you likely recall, last year Trump kicked AP out of the Oval Office press pool, because the AP had refused (in my view correctly refused) to call the Gulf of Mexico "the Gulf of America." A D.C. Circuit panel majority, to oversimplify slightly, concluded that this was constitutionally permissible, both as to the Oval Office and as to Air Force One. An excerpt from that 2025 decision (AP v. Budowich):

The White House is likely to succeed on the merits because these restricted presidential spaces {Oval Office, … Air Force One, and … the President's home in Mar-a-Lago} are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted.

The majority concluded that those spaces differed from some more broadly open spaces in the White House:

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Lightning Strikes Thrice

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The sun is setting shortly and I'm on the go, so my comments about the Missouri order will be brief.

First, the Court only addressed standing in a footnote. I am still not convinced any of the parties had standing but at least 5 members of the Court disagreed, including the Court's leading proceduralist.

Second, the per curiam noted that Justice Kavanaugh's prior orders had no noted dissents. I am still not convinced all three of these orders were unanimous. It may be that Justices Thomas and Alito did not think it was worth alienating Justice Kavanaugh.

Third, the point about this ruling not being a surprise was gratuitous. There were two summary ruling with no explanation. The prior case had serious AISG issues. The federal case did not. Apparently the prior cases were entirely about Purcell. Good to know.

Fourth, the Court says the merits here are unclear. I think this concession was the price of unanimity.

Fifth, this is an ironclad Purcell ruling that will be cited by the conservatives for years to come. The conservatives may see value in having this ruling as unanimous.

I was very wrong about the lighting docket here. I think the Justices felt they had to smack down the 8th circuit here.

Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Bogus traffic stops, cell-site simulating, and chain refoulment.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

"Technology may make surveillance more convenient, but it does not make the Fourth Amendment's protections any less important." So said IJ legislative counsel Alasdair Whitney this week at a congressional hearing on Flock and other automated license plate readers. Read all about it at The Hill. And then maybe check out our model legislation on the topic.

New on the Short Circuit podcast: We welcome on Robert Steinbuch, a professor at the University of Arkansas, to tell a tragic story of the upside-down world of federal remedies.

  1. After Anthropic refused to relax contractual prohibitions on the use of Claude for lethal autonomous warfare or domestic surveillance, the DoD deemed it a supply-chain risk and prohibited any of its contractors from using it. D.C. Circuit: Which was fine. Dissent: Clearly not what Congress meant.
  2.  

    In 2015, when Somerville, Mass. detective asks an informant to help locate a burglary suspect, the informant threatens to hurt the suspect (over an unrelated personal beef)—and then does, grievously, with a machete. City: We'd like to fire the detective for lack of candor about his role. Arbitrator: Not a chance. (The city's appeal is ongoing.) Detective (in a separate suit): Other officers have done worse and weren't fired; the city is retaliating against me. Jury: Yup, pay the detective $800k. First Circuit: More like $300k. (Some journalism.)

  3. Some of a district court's ruling against DHS evaporates in a cloud of Article III standing in this First Circuit opinion. However, requirements for adequate notice regarding third-country removals of noncitizens remain. Less noticeable is the use in footnote 2 of the word "refoulment" (in the context of "chain refoulment"), which means "forcing a refugee or asylum seeker to return to a country or territory where they are likely to face persecution." Originally a French term, it was not listed in the original OED and, unlike many of its Law French friends, seems to have only migrated into English (along with human rights law) after WWII. Read More

Free Speech

Anthropic's "Supply Chain Risk" Designation Stemmed from Its Refusing to Agree to Contract Terms, Not Its Speech

So the D.C. Circuit majority concluded in rejecting Anthropic’s First Amendment challenge.

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From Judge Gregory Katsas, joined by Judge Neomi Rao, in today's D.C. Circuit decision in Anthropic PBC v. U.S. Department of War:

To succeed on such a First Amendment retaliation claim, the plaintiff or petitioner must prove that (1) it engaged in protected speech, (2) the government took materially adverse action against it, and (3) the speech caused the materially adverse action

Anthropic has satisfied the first and second prongs of this test, but not the third. The First Amendment squarely protects Anthropic's advocacy regarding the safe and appropriate use of AI products. Moreover, the Department's exclusion of Claude from its supply chain plainly qualifies as a materially adverse action. However, we can discern no causal connection between the two. Instead, the record makes clear that the Department removed Anthropic from its supply chain not because of its advocacy, but because Anthropic refused to agree to a contract term the Department deemed essential to national security.

Consider the timeline. By its own admission, Anthropic has advocated for use and safety restrictions since its founding: The company describes its own commitment to model safety as "the core of Anthropic's mission," and describes its use restrictions as reflecting "the very purpose for which [the] company was founded" and its "deeply held values." But throughout 2024 and 2025, the Department never acted adversely to Anthropic. Instead, it included Anthropic in a $200 million AI contract awarded in July 2025, and it sought to expand its relationship with Anthropic.

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Recent Volokh Posts

1

As Suncor Approaches, Justice Alito Recuses

2

ALJ Recommends Dismissing Administrative Charges Against Florida Teacher for Kirk-Related and Trump-Related Posts

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Free Speech Unmuted: Can the President Kick Reporters out of the White House?

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Brothzilla, or "It's a Cruel Thing to Disrupt Your Estranged Sister's Expensive Destination Wedding"

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Today in Supreme Court History: September 28, 1787

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Open Thread

7

Today in Supreme Court History: September 27, 1787

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Open Thread

9

A Few More Thoughts On The Missouri Ruling

10

When Making a Statutory Argument, It Helps To Read the Statute

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