Justice Samuel Alito announced Monday he will not participate in Suncor Energy v. County Commissioners of Boulder County, the major climate dispute the U.S. Supreme Court will hear on October 5. A letter from the court confirmed the recusal, but Alito gave no reason for the decision, and the court declined to comment.

The reversal is notable. Earlier this year, Alito rebuffed calls to step aside from the case, which tests whether local governments can sue oil companies for damages tied to climate change impacts. A court spokesperson told NBC News in May that legal counsel had advised Alito recusal was not required, stating: "Justice Alito does not have a financial interest in any party" in the case.

Alito, a George W. Bush appointee, participated in the case when it returned to the justices last year. He had previously recused himself from Suncor Energy in 2023, when it reached the Supreme Court on a different question.

His most recent financial disclosures show Alito continues to hold stock in seven oil, gas and mining sector companies, including ConocoPhillips, Phillips 66 and OGE Energy Corp. He does not hold stock in Suncor Energy or Exxon Mobil, the plaintiffs in the current appeal. The companies have said a ruling in the case will ripple across the entire industry, which faces a flurry of similar lawsuits.

The ethics framework

The Supreme Court's code of ethics directs justices to step down if their "impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties."

The code identifies several instances raising impartiality concerns: personal bias concerning a party, prior participation in the proceeding at an earlier stage, knowledge that someone close to the justice has a financial interest in the subject matter, or involvement of the justice's spouse in the case.

Advocacy groups petitioned the Senate Judiciary Committee to force Alito aside, but he remained resolute in his participation until this week. He has also faced scrutiny over his connections to Paul Singer, whose investment firm is a major investor in Suncor Energy. According to ProPublica reporting, Alito accepted private jet flights from Singer totaling more than $100,000, including a 2008 fishing trip to Alaska.

A pattern of late recusals

Last-minute recusals from the high court are rare, but this is Alito's second in less than a year involving oil companies. In January, ahead of arguments in Chevron USA Inc. v. Plaquemines Parish, Alito said he would no longer participate because of his financial interest in ConocoPhillips.

What it means for practitioners

The recusal leaves eight justices to hear Suncor Energy on October 5, raising the possibility of a 4-4 split that would affirm the lower court's ruling without setting nationwide precedent. Counsel on both sides must now calibrate their arguments to an eight-member bench, with no tie-breaking ninth vote. The development also signals that holdings in oil, gas and mining stocks may continue to drive recusals in the wave of climate litigation now moving through the courts — a factor parties should weigh when mapping out certiorari strategy and framing questions presented in future energy-sector appeals.