Alito Talks Retirement

Plus: The Supreme Court weighs a local government’s lawsuit against oil companies over global climate change.

"Justice Alito confirms he is considering retirement."

So declared a recent attention-grabbing headline at Politico, which probably caused a blood pressure spike among those readers who got the mistaken impression that the retirement under consideration might be imminent.

The full story was rather less exciting than the headline. What happened was Justice Samuel Alito, age 76, told CBS News that retirement is "something that I think that somebody at my age has to think about every term." In other words, Alito had already thought about packing it in earlier this year and decided against it. As Alito told The Wall Street Journal back in August, "obviously I'm here for another term." By Alito's own telling, the soonest that he would consider retiring is sometime next year, after the Supreme Court's latest term—which began yesterday and doesn't end until late June or early July 2027—is over and out.

The funny thing about all this Alito retirement talk, as I've noted before, is that Alito's conservative fans have been the ones trying so hard to push him out the door. They fear, perhaps wisely, that the Democrats will gain control of the Senate in next month's midterm elections and President Donald Trump's chances of successfully appointing another justice to the Supreme Court will drop to somewhere less than zero. Had Alito retired this past summer, as those conservatives clearly wanted him to do, Trump's replacement pick would already be dressed in black robes after breezing through confirmation by the Republican-controlled Senate.

Alas, if next month's big midterm elections go against the party of Trump, we may never get the chance to hear Justice Kid Rock on the mic during oral arguments.

Climate Change Federalism?

The Supreme Court kicked off its 2026–27 term yesterday with a whopper of a case. At issue in Suncor Energy, Inc. v. County Commissioners of Boulder County is whether a local government may sue an energy company over the adverse effects of global climate change or if the suit, filed under state law, is preempted, or barred, by federal law. State and local governments around the country, which have either launched or are contemplating the launch of comparable suits of their own, will be watching this one closely.

Kannon Shanmugam, the lawyer representing Suncor Energy and Exxon Mobil, told the justices that "because of the ambient nature of air and water and the conflicting rights of states, this Court has held for over a century that federal law governs interstate pollution claims. That principle applies with even greater force," he argued, "to claims involving global climate change."

Kevin Russell, the lawyer representing city and county officials in Boulder, Colorado, countered by arguing that "since the founding, states have had the power to provide tort remedies for injuries occurring within their borders even when the conduct causing those injuries occurred elsewhere."

This case falls under a heading that we might call "regulatory federalism." Congress has passed various laws aimed at addressing the problems caused by pollution. Does that kind of federal action always preempt the states from taking far-reaching actions of their own, or is there room for the states to act in addition to whatever the federal government has done? And if there is room for some federalism here, what's the correct balance to strike between federal and state authority?

Notably, this case also has the potential to come out as a rare 4–4 split because Justice Alito has recused himself over the fact that he owns stock in oil companies. Alito's absence means that if just one Republican appointee joins the three Democratic appointees in ruling against the energy companies, as Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson all seemed inclined to do, that tie would leave in place a decision by the Colorado Supreme Court in favor of letting the local government's lawsuit proceed.

Judging by the oral arguments, the outcome seemed too close to call. A decision is expected by late June 2027.