Opinion: The Supreme Court's recusal rules failed the test in its own climate case

Justice Samuel Alito spent seven months insisting he had no reason to step aside from the biggest case on the Supreme Court's new docket. Then, one week before oral argument, he stepped aside anyway. The court's own docket shows the notice landing on September 28: "Justice Alito will not continue to participate in this case." No explanation accompanied it. None was required, and that is precisely the problem.

The case is Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, and it will open the Supreme Court's new term on October 5, the first argument on the October sitting's calendar. Boulder County and the city of Boulder sued Suncor and ExxonMobil in 2018, arguing that the companies should help pay the local costs of climate change under ordinary Colorado nuisance and tort law. In May 2025 the Colorado Supreme Court agreed the claims could proceed, rejecting the companies' argument that federal law preempts them. The justices granted certiorari in February 2026 and, unusually, added a second question on their own initiative: whether the Supreme Court even has jurisdiction to hear the case at all. Billions of dollars in potential damages ride on the answer, and so, indirectly, do at least eleven similar suits from California, New Jersey, Delaware and a string of California cities and counties that have been stayed pending the outcome, according to the Sabin Center's climate litigation tracker.

Alito's reversal is the headline. But the more durable story is what his about-face reveals: a recusal system at the nation's highest court that runs entirely on the honor system, with no appeal, no panel review and, evidently, no fixed answer even from the justice making the call.

A recusal with no reasons given

Alito disclosed ownership of ConocoPhillips and Phillips 66 shares, along with holdings in several other energy companies, but not in Exxon or Suncor, the actual parties before the court. When advocacy groups pressed him to step aside earlier this year, a court spokeswoman said, as NBC News reported, that Alito "does not have a financial interest in any party" and that his recusal was "not required." He sat through certiorari briefing and the grant of review on that basis. Then, days before argument, he reversed course without a word of explanation — echoing a pattern from 2023, when he recused from an earlier, related petition in the same dispute, only to reappear for this one.

Consumer Watchdog's Alexandra Nagy called the outcome "the right decision, and one he should have made from the start." Mike Meno of the Center for Climate Integrity put it more bluntly, arguing that Exxon and Suncor effectively invited this maneuvering three years ago and that "people have a very cynical view of this court, and actions like this only reinforce the public's concerns about the court's integrity." Whatever one thinks of Meno's framing, the sequence he is describing is not in dispute: a justice with fossil-fuel holdings declined to recuse, participated in the vote to take up an industry-friendly case, and only withdrew after the political cost of staying became too visible to ignore.

The other recusal question nobody has resolved

Alito is not the only justice facing recusal pressure in this case, and the contrast is instructive. A coalition of conservative legal groups has spent months demanding that Justice Elena Kagan step aside because she wrote the foreword to an edition of the Federal Judicial Center's Reference Manual on Scientific Evidence that included a chapter on climate science — a chapter later stripped from the manual after Republican attorneys general objected. Kagan has said she never read the disputed chapter before submitting her foreword and has declined to recuse. Unlike Alito, she has offered a substantive account of why she believes recusal is unwarranted. Both justices are applying the same nominal standard — a "reasonable person" test for the appearance of bias — to reach opposite postures on disclosure, and both decisions are final the moment they are made. There is no motions panel to review them, no en banc court to overrule them, and no appellate step available to litigants who disagree.

"We spend too much time talking about what is required of the justices. We should be talking about the right thing to do, because the justices owe us all an ethical duty and they owe us an institutional duty." — Louis Virelli, Stetson University law professor

A code with no enforcement mechanism

This is not a new complaint, but it has a specific and traceable cause. In November 2023, facing sustained criticism over undisclosed gifts and travel, the justices adopted their first-ever Code of Conduct for Justices. It restates long-standing recusal principles — a justice should step aside where his or her impartiality "might reasonably be questioned" — but it assigns the job of applying that standard to each justice, alone, case by case. There is no colleague who signs off, no clerk's office that certifies the analysis, and no outside body that can revisit it. The code was, by design, an act of self-governance rather than a structural fix, and the Suncor docket shows exactly why that distinction matters: it allowed a justice to decline recusal in February, sit through the certiorari vote, and then, in September, reverse himself with a single unadorned sentence.

Arthur Hellman, who has studied judicial ethics at the University of Pittsburgh for decades, frames the underlying worry correctly: the ruling in Suncor will not stay contained to Boulder County. "People will wonder, 'Isn't there a downstream effect of whatever the court decides in Suncor on … other fossil fuel companies?'" A justice who holds shares in ConocoPhillips and Phillips 66 has a stake, however indirect, in how broadly or narrowly the court answers that question — which is exactly the kind of interest the appearance standard exists to catch, and exactly the kind of interest that a self-certifying process is worst-equipped to catch consistently.

• None of this speaks to how Suncor should be decided on the merits. Preemption and jurisdiction are real, close legal questions, and reasonable judges can disagree about both.
• But the process by which the court decided who gets to rule on those questions has now produced a full reversal, issued without reasons, seven months after the fact and one week before argument.
• That is not a system operating as designed. It is a system that happened, this time, to correct itself under public pressure — with no guarantee it will do so the next time.

What a fix would actually require

The remedy is not mysterious, even if it is politically unlikely. Every other federal judge operates under a binding conduct code enforced through the Judicial Conference, with a formal process for disqualification motions that a losing party can raise and a reviewing judge can assess. Extending an equivalent mechanism to the Supreme Court — even something as modest as requiring a written, public explanation whenever a justice recuses or declines to, and a process for a majority of the other justices to review a contested recusal decision — would not resolve every hard case. It would, however, replace the current arrangement, in which the only check on a justice's recusal judgment is that justice's own second thoughts, with something closer to a reviewable standard. Congress has floated such legislation before and the court has resisted it as an intrusion on judicial independence. That resistance becomes harder to defend the more often self-review produces exactly the kind of last-minute reversal the Suncor docket just recorded.

Alito's decision to step aside is, on its own terms, the right outcome. It removes a plausible appearance of bias from a case that will help decide whether dozens of climate-liability suits across the country live or die. But an ethics process that depends on justices eventually feeling enough outside pressure to reconsider is not an ethics process — it is a public-relations backstop. The court will hear Suncor on October 5 with eight justices instead of nine, having demonstrated in the process exactly why its current self-policing model cannot be trusted to catch these questions before they become news stories.