Alito Recusal Shrinks SCOTUS to 8 in Climate Preemption Case

For legal and RegTech professionals tracking the Supreme Court's new term, Alito's reversal from a May refusal to a September 28 recusal is a rare test of judge-made recusal norms. The absence of any explanation and the fact that his holdings are in non-parties like ConocoPhillips and Phillips 66 make this a live case study in appearance-of-impropriety standards and whether transparency obligations are changing.

On September 28, 2026, Supreme Court Clerk Scott Harris notified parties that Justice Samuel A. Alito Jr. would not participate in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, the climate liability case set for oral argument a week later on October 5, the first day of the Court's 2026-27 term. The one-paragraph letter offered no explanation: "Justice Alito has determined that he will not continue to participate in this case." The timing is significant. It comes after Alito and the Court spent months resisting recusal demands, and it removes a conservative justice from a dispute that could shape whether state and local governments can use tort law to seek billions of dollars from fossil fuel producers for climate-related damages.

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Environmental and judicial watchdog organizations wrote in May 2026 to the Senate Judiciary Committee, pointing to Alito's financial disclosure showing stock in ConocoPhillips and Phillips 66.

At the center of the case is the doctrine of preemption. Boulder County and several Colorado local governments sued Suncor Energy and ExxonMobil in state court, arguing that the companies' production and sale of fossil fuels contributed to climate change harms. Suncor and Exxon then asked the Supreme Court to decide whether federal law and constitutional separation-of-powers principles displace state tort claims over interstate and international greenhouse gas emissions. The case is the opening argument of the new term, underscoring its priority. A ruling for the energy companies could confine climate liability litigation to federal courts or bar such state common-law claims entirely, while a ruling for Boulder County could validate a framework that numerous state and local governments have pursued, with billions of dollars in claimed damages.

Alito's recusal is the product of an ethics pressure campaign. Environmental and judicial watchdog organizations wrote in May 2026 to the Senate Judiciary Committee, pointing to Alito's financial disclosure showing stock in ConocoPhillips and Phillips 66. They argued that even though Alito held no shares in ExxonMobil or Suncor, a broad ruling limiting climate liability could benefit other oil and gas companies in his portfolio. The Court initially rejected that reasoning with unusual directness: a Supreme Court spokesperson told NBC News that Alito had no financial interest in any party and that "his recusal is not required." Alito himself had previously refused recusal demands in other high-profile cases. The unexplained reversal seven days before argument raises important questions about what changed and whether the Court responded to public pressure or new legal advice.

Procedurally, Alito's departure leaves an eight-member Court. If the remaining justices divide 4-4, the decision below would stand by an evenly divided Court, creating no Supreme Court precedent and leaving lower courts without guidance. Alternatively, a five- or six-justice majority could still issue a definitive ruling, but the balance may shift in unpredictable ways. Although the Court has a 6-3 conservative majority, the sources note that preemption disputes have not always divided along traditional ideological lines; conservative-appointed justices have at times joined liberal colleagues in preemption and climate-related decisions, so Alito's absence may be less outcome-determinative than activists or industry might assume.