Justice Alito steps aside from Supreme Court climate case before Oct. 5 arguments

The Colorado Supreme Court allowed the case to proceed in a May 12, 2025, decision. Suncor and Exxon Mobil argue that federal law, including the Clean Air Act, and the Constitution prevent Boulder from pursuing its claims under state law. The federal government has also supported the companies’ position in a filing to the Supreme Court.

The Supreme Court agreed to review the dispute on Feb. 23, 2026, and added a threshold question: whether it has statutory and constitutional jurisdiction to hear the case. The Court’s docket lists that issue alongside the dispute over whether federal law precludes Boulder’s claims.

The order of those questions matters. The justices could address whether the Court has authority to hear the appeal before deciding the companies’ arguments about state law. The practical power at issue is whether these local governments can pursue damages under state law; the Supreme Court has not decided whether the companies are liable for the harms alleged.

The eventual decision could affect similar lawsuits brought by other state and local governments. Its reach would depend on what the Court decides and how it rules, while the immediate question for Boulder is whether its claims can proceed.

The notice gives no reason for Alito’s absence

On Sept. 28, Supreme Court Clerk Scott Harris wrote that Alito “has determined that he will not continue to participate in this case,” CBS News reported. The docket records the letter but offers no explanation for the decision.

That silence leaves an important part of the decision-making process unknown. It does not support an inference about Alito’s reasoning, and the notice does not connect his nonparticipation to any financial holding or other factor.

The financial context has drawn public attention. Alito’s disclosed holdings include ConocoPhillips and Phillips 66, but that he does not own stock in Suncor or Exxon Mobil. Before the new notice, Alito had faced calls to step aside over energy-company holdings.

Courthouse News Service reported that, in May, a Supreme Court spokesperson told NBC News, “Justice Alito does not have a financial interest in any party.” The outlet also reported that legal counsel had advised that recusal was not required. That earlier explanation does not account for the Sept. 28 notice, which leaves the reason unstated.

The distinction matters: the holdings and earlier comments help explain why observers have scrutinized the question of recusal, but they do not establish why Alito will not participate now. Nor does the notice resolve broader questions about how recusal decisions are made or explained.

One fewer justice changes the procedural possibilities

A recusal changes who can decide a case; it does not alter the parties’ arguments or determine the result. With one fewer justice participating, the Court still must address the jurisdiction question and, if it reaches the merits, the companies’ challenge to Boulder’s claims. The notice says nothing about how the participating justices view either issue.

An even division is a possible procedural outcome, not a prediction. In an explanation of Supreme Court practice, Justice Elena Kagan said that when the justices divide evenly, the judgment under review is affirmed without reasons, and that disposition does not establish precedent. In this case, such an outcome would leave the Colorado judgment in place for the parties without creating a precedential rule from the Supreme Court. Kagan’s explanation describes a procedural consequence, not the likely vote here.

The jurisdiction issue means the stakes of participation extend beyond vote arithmetic. Whether the Court can hear the appeal may determine whether it considers arguments that could constrain climate-related claims brought under state law. The justices’ first decision may be about their authority to review the Colorado ruling, rather than the claims themselves.

Oral argument is scheduled for Oct. 5. It will bring the jurisdiction question and the companies’ challenge before the justices who participate, while the reason for Alito’s decision and the case’s outcome remain unresolved.