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Samuel Alito

Justice Alito Gives a Fuller Explanation of His Suncor Recusal

One of several worthwhile tidbits in Justice Alito's Wall Street Journal interview.

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The latest edition of the Wall Street Journal's Potomac Watch podcast is an interview with Justice Samuel Alito (who, if you have not noticed, has a new book to promote).

There are quite a few interesting tidbits in the interview, and it covers some ground not included in Jan Crawford's CBS News interview (and vice versa).

One part of the interview of particular interest to me was Justice Alito's discussion of how he came to recuse in Suncor Energy v. Boulder County. It seems to suggest that the claims made by the petitioners (and their allies) about the potentially catastrophic effects on the oil and gas industry of an adverse ruling in Suncor may have convinced Justice Alito that he needed to recuse, even though he does not own stock in any of the companies that are part of the case. I think such claims are overstated, but they have resulted there being one less justice sitting who is inclined toward preemption arguments of the sort in play here.

From the YouTube transcript (cleaned up only a wee bit):

Well, I I don't think it's something that should be done routinely, and I could go into that, but I'll I'll skip over that. But there are instances where I think it's appropriate and wise for a justice to explainwhy the justice is not recusing in a case and I have done that on a number of prior occasions.

Determining whether to recuse is a very serious responsibility. We have an obligation to sit unless we are disqualified because unlike a court of appeals where the recusal of a judge doesn't change the number of jurists who were sitting on the matter, here it does and it's unfortunate . . .

Now why did I do it in the Suncor case? There are two provisions of our code of conduct--which I support and actually helped to draft--that apply in the situation where the recusal question involves a justice's ownership of stock. The first question that has to be asked is does the justice own or the justice's spouse own stock in a party to the case? Does the justice have an interest in the outcome of this particular case? And the answer to that question in the Suncor case was no. We do not own any stock in any party or affiliate of any party in the case.

Usually that's the end of the matter in cases involving stock ownership. However, there is a second question and that is whether the the justice's financial interest might be
substantially affected by the outcome of the case. Usually when it is, as I said, when it involves the ownership of stock, that's a pretty easy question to say to answer no because it's very very rare for one of our decisions to have an effect on the price of publicly traded stock. And that's why I did not recuse when we decided to take the case.

However, as the date of the argument approaches and I immersed myself in the arguments that were were being made on both sides, I thought through the question again. The question is what would a reasonable person aware of all the relevant circumstances think? And ultimately I came to the conclusion that a reasonable person
aware of the fact that my wife and I have a substantial investment in some companies in the oil and gas field.

And this is a case in which the the petitioner and the petitioners' amici are arguing that a decision against them would start a snowball rolling down a hill which could ultimately lead to devastating consequences for the oil and gas industry. That under those circumstances, the particular circumstances here, the arguments that were being made, I should recuse. I did it reluctantly, but I thought that was what I ought to do under those particular circumstances.

One consequence of Justice Alito's recusal is that the Court could split 4-4 on one more more of the issues in the case. If so, the petitioners could well come to regret Alito's recusal. Note further that insofar as Justice Alito concluded he needed to recuse in this case, the same rationale would apply in any subsequent case raising the same issues, so long as the Alito stock holdings remain unchanged. So a 4-4 split here could mean the Court is split 4-4 on these issues for the foreseeable future.

For what it's worth, the fact that a 4-4 split would generate a stalemate that could not soon be resolved--and that climate tort litigation would continue unabated so long as the 4-4 split persists--suggests to me that at least some of those justices inclined toward finding preemption will (if faced with the prospect of a 4-4 split) seek a compromise, whereby Boulder County's suit would be narrowed, but not preempted. Of course, should either side command five votes at conference, there would be less need for such a compromise.

Video of the Alito interview is below.

For more on Suncor, here are (some of) my posts on the subject (with more to come):

Jonathan H. Adler (@jadler1969) is the Tazewell Taylor Professor of Law at the William & Mary Law School and a senior fellow at the Property and Environment Research Center.