Why Justice Alito Should Not Recuse from 'Suncor v. Boulder'

The Supreme Court’s February decision to grant certiorari in Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County raised anew a common refrain that environmental advocates and editorialists have insisted that Justice Samuel Alito recuse himself. The demand is wrong as a matter of law, ignores precedent followed by Justices Rehnquist and Scalia, and inverts the framework Congress enacted in 28 U.S.C. § 455 and the framework all nine sitting Justices ratified in the Court’s 2023 Code of Conduct. Under both, Justice Alito is not required to step aside – and given the realities of a nine-member Court of last resort, he should not. 

Section 455 sets a narrow, administrable standard. Subsection (b)(4) requires disqualification when a Justice “has a financial interest in the subject matter in controversy or in a party to the proceeding.” Subsection (a) requires disqualification “in any proceeding in which his impartiality might reasonably be questioned.” 

The operative phrase in (b)(4) is “a party to the proceeding.” The petitioners in Suncor v. Boulder are Suncor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., and Exxon Mobil Corporation. Justice Alito owns no stock in any of them. ConocoPhillips (the company whose shares he holds) is not a petitioner, not a respondent, not a parent or subsidiary of a party, and is not named in Boulder’s underlying state-court litigation. Section 455(b)(4) does not reach stock ownership in a non-party company that may be commercially affected by the Court’s reasoning. 

The fallback argument is that a ruling limiting state-law climate liability would benefit the fossil fuel industry as a whole, including ConocoPhillips, and that this indirect benefit would trigger § 455. The theory has no foothold in the statute, and the Court itself has expressly rejected it. 

In its November 2023 Code of Conduct – signed by all nine sitting Justices – the Commentary to Canon 3B addresses interests that “could be substantially affected by the outcome of the proceeding.” It instructs that, “[b]ecause of the broad scope of the cases that come before the Supreme Court and the nationwide impact of its decisions, this provision should be construed narrowly.” 

The Code cites the Court’s leading application of that principle: Chief Justice Rehnquist’s 2000 statement explaining why he would not recuse  himself from the Microsoft antitrust litigation, despite his son’s law firm representing Microsoft as paid counsel in other antitrust cases. Rehnquist acknowledged that a “decision by this Court as to Microsoft’s antitrust liability could have a significant effect on Microsoft’s exposure to antitrust suits in other courts.” But he concluded that giving § 455(a) “such a broad sweep” would be “contrary to the ‘reasonable person’ standard which it embraces.” Microsoft Corp. v. United States, 530 U.S. 1301, 1303 (2000). 

That reasoning controls here. If a Chief Justice could sit in Microsoft despite his son’s law firm’s active representation of the petitioner in parallel antitrust cases, Justice Alito plainly may sit in Suncor despite owning stock in a non-party. The only “interest” critics can identify is the same indirect precedential exposure Rehnquist deemed insufficient, and his case involved the actual party before the Court. The “reasonable observer,” Rehnquist added, is “informed of all the surrounding facts and circumstances” – not a motivated litigant or advocacy group parsing financial disclosures for leverage. 

The reason is structural. Every consequential Supreme Court decision affects non-parties. If indirect exposure created a disqualifying “financial interest,” a Justice with a diversified retirement account could be disqualified from nearly every major commercial docket. That has never been the rule. 

The Justices have long recognized the corresponding duty to sit. As then-Justice Rehnquist put it in his Laird v. Tatum memorandum, “a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Justice Scalia similarly adhered to the principle when his recusal was called for, stating, “I do not think that it would be proper for me to recuse…That alone is conclusive; but another consideration moves me in the same direction: Recusals would in my judgment harm the Court.” The 2023 Code emphasizes this principle and further explains: “the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.” 

Suncor v. Boulder is precisely the kind of case in which that obligation carries weight. The question presented – whether federal law precludes state-law tort claims premised on interstate greenhouse-gas emissions – is of national scope, with dozens of parallel state suits moving toward trial. The Court has also directed the parties to brief on whether it has jurisdiction at all, a threshold question that warrants a full nine-member Court. In fact, most state courts have stayed these cases pending the Supreme Court’s decision because they need clarity to proceed.  A 4–4 decision would leave individual state trial benches to continue adjudicating claims that purport to regulate global energy markets without constitutional clarity. 

Justice Alito’s decision to participate is not an ethical lapse. It is a straightforward application of § 455. ConocoPhillips is not a party; sector-wide precedential effects are not a disqualifying “financial interest”; and the appearance standard is not satisfied by generalized industry exposure common to diversified investors. The Court’s own Code of Conduct forecloses the contrary view. 

The law permits Justice Alito to sit; the institutional setting counsels him to do so; and the text of § 455 forecloses the demand that he step aside. As Mollie Hemingway recently observed in The Federalist, that kind of fidelity to the law as written has been the hallmark of Justice Alito’s twenty years on the Court. Recusal here would not be an act of ethical caution. It would be a concession to a standard Congress never enacted, the Court has expressly disclaimed, and the Justices themselves have rejected. 

A.J. Ferate is an attorney in the Oklahoma City office of Spencer Fane, LLP.