Justice Samuel Alito will sit out a major climate case against oil companies after previously rejecting recusal calls, raising the risk of a 4-4 Supreme Court split.
Conservative Supreme Court Justice Samuel Alito has determined he will not continue to take part in a high-stakes climate liability fight involving ExxonMobil and Suncor Energy, a late change disclosed days before arguments.
The move, reported by NBC News, comes after the Court had already been told recusal was not required and after Alito’s office had rejected earlier pressure to step aside. With the case set for argument next week, his absence opens the door to a 4-4 deadlock that could leave core legal questions unresolved.
The underlying dispute is a Colorado lawsuit brought by the city and county of Boulder. Local officials want damages from oil companies over claimed climate impacts. ExxonMobil and Suncor are asking the justices to throw that suit out and, industry lawyers hope, draw a broad line that stops similar state-court campaigns nationwide.
For energy producers, the stakes are not abstract. A sweeping win could block copycat cases and spare the sector from what advocates and industry observers have described as potential payouts in the billions. A tied Court would do the opposite: leave the fight alive and the law unsettled.
In a letter dated Monday to counsel in the case, the Court informed the parties of Alito’s decision in plain terms. “Justice Alito has determined that he will not continue to participate in this case,” the notice stated. No reason was given.
Reuters reported the matter is set for argument on October 5, and that Clerk of the Court Scott Harris conveyed the same determination to the parties. The timing is late in the life of a case already heading to the bench.
That silence on motive matters. Court rules and past practice leave justices wide discretion on when to sit out. Alito did not spell out a new conflict, a new holding, or a change in the law of recusal. He simply said he would not continue.
Readers following the justice’s recent public posture already know he has confirmed plans to remain on the Court rather than exit under political speculation. Sitting out one docketed fight is a separate, narrower choice, and one that still reshapes the vote math for everyone else.
This is a reversal of the Court’s prior public line on the same controversy. A Supreme Court spokeswoman had told NBC News that Alito did not need to step aside. She said he “does not have a financial interest in any party” in the case and that the Court’s legal counsel advised “his recusal is not required.”
Alito’s financial disclosure report underpins that claim on the named parties. He does not own stock in ExxonMobil or Suncor Energy. He does hold shares in ConocoPhillips and Phillips 66, plus other energy-sector firms. Those companies are not the parties seeking to kill the Boulder suit now before the justices, though they face similar climate theories in other litigation.
Breitbart added that Alito holds stock in roughly two dozen energy companies that could feel the effects of a broad climate-liability ruling, and that the recusal notice arrived later in the proceedings than is typical. The pressure campaign against him treated those indirect holdings as enough.
Advocacy groups had made that argument explicit. Earlier this month, Consumer Watchdog pointed to shareholder disclosures from ConocoPhillips and Phillips 66 warning investors about risks from climate lawsuits built on claims like Boulder’s. Organizing director Alexandra Nagy praised the new decision, saying Alito’s recusal “is the right decision, and one he should have made from the start.”
That is the activist frame: step aside first, explain later, and treat energy-sector investing itself as a standing conflict. The Court’s own counsel had already rejected that theory once.
Alito’s history with this litigation is not a blank slate. In 2023, when the Supreme Court turned away an appeal from the companies in the Colorado case, he recused. The same day, the Court rejected appeals in related matters involving other firms, including ConocoPhillips and Phillips 66. Alito did not take part in those either.
In May, a Court spokesman described the earlier Colorado recusal as something Alito had done “inadvertently.” The spokeswoman’s parallel message remained that he lacked a financial interest in any party and that counsel saw no duty to recuse. The new letter abandons participation anyway.
The sequence is hard to miss. First came an inadvertent sit-out. Then came an official assurance that no recusal was required. Then came outside pressure built on holdings in non-parties. Then came a second withdrawal, this time on the eve of argument, with no stated rationale.
Alito has also put retirement talk to rest for another term, which keeps the Court’s long-term balance intact even as this single case loses his vote. Personnel stability and case-by-case recusal are different tools. Both now sit in plain view.
Without Alito, the conservative-majority Court can still divide evenly. A 4-4 result would typically leave the lower-court outcome in place and set no nationwide precedent. For companies trying to stop a wave of municipal climate suits, that is a loss of the clarity they came to Washington to get.
Boulder’s theory is part of a larger strategy. Cities and counties file in friendly state forums, demand damages for global climate trends, and dare energy producers to live under a patchwork of verdicts. Oil and gas defendants want the Supreme Court to say those cases do not belong in state court on these terms. A broad ruling was the industry hope. A tie does not deliver it.
That is why the recusal is not a paperwork footnote. It changes the odds on the very question the docket teed up: whether local governments can keep using state courts as a second front in national energy and climate policy.
Recusal fights on climate are not confined to Alito. Some conservatives have pressed Justice Elena Kagan to sit out climate-related matters over a controversy about a chapter on climate change that was included in, then removed from, a reference manual for judges. Kagan wrote a brief foreword to the manual and recently told lawmakers she never read the contested chapter.
The contrast notes itself. One justice faces a full-court press over stock in companies that are not even parties. Another faces a shorter flare-up over a manual chapter she says she did not read. Watchdog groups and political actors choose their targets. The institutional standard is supposed to be the same for both.
Kagan has separately spoken publicly about the Court’s independence in ways that drew close reading from critics and supporters alike. Independence claims only hold if recusal norms apply evenly, not as a one-way ratchet against justices who own energy shares or vote with the conservative bloc.
Court dynamics can shift in other closely watched matters too, including cases where Chief Justice Roberts has broken from the conservative majority. Vote-counting is now a permanent feature of high-profile terms. Alito’s climate sit-out adds another live variable.
The public record still leaves basic questions open. The Monday letter does not say whether Alito reassessed the ConocoPhillips and Phillips 66 holdings, yielded to optics, or simply chose caution after the earlier “inadvertent” episode. The spokeswoman did not immediately offer fresh comment when the new notice went out.
Nor does the notice resolve the underlying legal fight. Boulder still wants its damages theory alive. ExxonMobil and Suncor still want it buried. Sister cases still shadow non-party energy firms whose shareholder filings already flag climate-suit risk. Alito’s empty chair decides none of that on the merits.
It does decide the headcount. Eight justices will hear a dispute built to set national ground rules for climate tort campaigns. Four-to-four remains a live possibility. Industry’s bid for a clean, preventive ruling is weaker than it was the day before the letter.
Pressure groups got the sit-out they demanded. Energy defendants lost a reliable vote on a case designed to stop state-court freelancing over global climate policy. If the Court ties, the lawsuits go on, and the bill ultimately runs through the same productive economy activists keep dragging into court.