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: