Supreme Court justices don’t typically give the public much of a peek behind the recusal curtain. Usually, a justice simply disappears from a case, and everyone is left to infer why from a terse docket notation and whatever financial-disclosure breadcrumbs they can find.
But Justice Samuel Alito recently pulled back that curtain, offering a rare explanation for why he was sitting out a major climate-change case. His explanation gave the public a glimpse of how a justice weighs a potential conflict — and came with a caveat: Don’t expect this kind of transparency every time. Alito said he doesn’t think such explanations should become routine, although he declined to elaborate on why.
His decision raises more questions than it answers, and we’ll run through them. But first, a quick refresher on the underlying lawsuit.
The Underlying Case
The city and county of Boulder sued Exxon Mobil and Suncor Energy in 2018, alleging that the companies contributed to climate change while concealing the dangers of fossil fuels. The case has now reached the Supreme Court after the Colorado Supreme Court allowed Boulder’s state-law claims to proceed. We previously covered the Court’s decision to take the case, including the major questions about federal preemption and whether the justices can review the dispute before a final state-court judgment.
The Court announced Alito’s withdrawal on September 28 without an explanation. Two days later, he discussed his decision in an interview with Bloomberg, then offered a fuller explanation on the October 6 episode of The Wall Street Journal’s Potomac Watch podcast. He and his wife don’t own Exxon or Suncor stock, but they hold substantial investments in other oil and gas companies, including ConocoPhillips and Phillips 66
No Exxon Stock, Still a Potential Conflict
Why would those holdings matter if the companies aren’t defendants? Because federal recusal law extends beyond the names on the lawsuit. Under 28 U.S.C. § 455(a), a justice must disqualify themselves when their impartiality “might reasonably be questioned.” Section 455(b)(4) separately addresses financial interests in a party or the subject matter, along with other interests that could be substantially affected by the outcome. The Court’s Code of Conduct reflects these principles.
A justice doesn’t have to be caught protecting their stock portfolio for recusal to be necessary. The question is how things look to an informed, unbiased observer: Would that person have reason to doubt the justice could decide the case fairly? “I can be impartial” isn’t the end of the conversation.
Alito initially saw no reason to sit out. Then he took a closer look at the arguments. The companies and their supporters were warning that a loss could have devastating consequences across the oil and gas industry — including, potentially, companies in his portfolio. That broader financial picture changed his assessment. He concluded that a reasonable person aware of those circumstances would think he should step aside.
And those concerns weren’t just hypothetical. ConocoPhillips and Phillips 66 face similar climate lawsuits themselves. Consumer Watchdog highlighted both companies’ warnings to investors about the financial risks of that litigation. The group believes its research helped prompt Alito’s recusal, but his explanation did not confirm that connection. In his Bloomberg interview, Alito said recusal was not required, but he nevertheless called it “the prudent step.”
Court Rules on Recusal
The rules establish when a justice must recuse. But who decides whether those rules apply? At the Supreme Court, the justice whose participation is questioned decides. The other justices don’t review that decision. This puts the initial decision to participate (and any later reconsideration) in the same justice’s hands. Alito’s withdrawal shows how that assessment can change even after the Court has agreed to hear a case.
Note that the Court’s code does not generally require justices to explain their recusals publicly. But an explanation helps readers understand which rule a justice applied, rather than trying to reconstruct the reasoning from financial disclosures.
Justices Elena Kagan and Ketanji Brown Jackson have provided brief explanations in some recusal orders, including citations to the federal recusal statute or the Supreme Court’s Code of Conduct. Those notations may not answer every question, but they give readers more information than a bare statement that a justice did not participate.
Alito Didn’t Recuse Himself From the Get-Go
Alito stepped aside before arguments, but he had already helped decide whether the Court would hear the case. He acknowledged participating when the justices agreed to take it up in February. Recusal rules don’t kick in only when it’s time to issue a ruling; they cover earlier stages, too.
That makes the timing worth examining. Should the potential conflict have been recognized sooner? It’s a fair question, but it doesn’t mean Alito’s participation was the deciding factor in the Court’s decision to hear the case.
Questions about his involvement weren’t new. In May, advocacy groups asked why Alito was participating after sitting out an earlier petition involving the same companies. A Court spokesperson said he had no financial interest in either party and had received advice that recusal wasn’t required.
As for that earlier recusal? The spokesperson said it was a mistake. When the Court denied an earlier petition for review in the Colorado litigation in 2023, it considered the case alongside other climate cases involving companies in Alito’s portfolio. He inadvertently sat out the Colorado case as well.
His latest withdrawal, then, wasn’t simply a return to his earlier position. Alito’s explanation was that a closer look at the arguments changed his view of how much this case could affect his investments.
One Empty Seat Can Matter
Alito emphasized that justices have an obligation to hear cases unless disqualified. The Court’s code recognizes that duty and explains the practical concern: no substitute justice can fill a recused member’s seat.
Whether Boulder’s lawsuit moves forward now depends on the remaining eight justices. If the remaining justices divide evenly on whether to affirm or reverse, the Colorado judgment would stand. Boulder’s lawsuit could continue, but the tie would not establish a nationwide Supreme Court precedent governing similar claims. That would be a practical win for Boulder without settling the larger legal fight.
