Supreme Court Justice Samuel Alito will not take part in a major climate lawsuit against ExxonMobil and Suncor Energy, raising the risk of a 4-4 split just before arguments.
A Monday letter to counsel stated that the conservative justice “has determined that he will not continue to participate in this case,” with no reason given, NBC News reported.
The fight reaches the Supreme Court next week. At stake is a Colorado suit by the city and county of Boulder seeking damages from oil companies over climate change impacts, and a broader industry push to stop similar cases in state courts.
Alito’s exit leaves the court without one vote from its 6-3 conservative majority. That opens the door to a tie. A 4-4 split would leave major legal questions unresolved and undercut the oil and gas sector’s hope for a wide ruling that could block copycat suits and spare companies billions in potential damages.
This was not Alito’s first brush with the Colorado dispute. In 2023, he recused when the court turned away an appeal from the companies in the same case. That same day, the court rejected similar appeals involving other firms, including ConocoPhillips and Phillips 66. Alito did not take part in those either.
By May, a court spokeswoman described the earlier move as an “inadvertently recused” episode. She said Alito “does not have a financial interest in any party” and that the court’s legal counsel advised him “his recusal is not required.”
He owns stock in ConocoPhillips and Phillips 66, plus five other energy-sector firms. He does not own stock in ExxonMobil or Suncor Energy, the parties now before the court.
Left-leaning groups still pressed him to leave the case. Earlier this month, Consumer Watchdog pointed to shareholder disclosures from ConocoPhillips and Phillips 66 that warned about risks from climate lawsuits like Boulder’s.
"Justice Alito’s recusal... is the right decision, and one he should have made from the start,"
said Alexandra Nagy, organizing director for Consumer Watchdog.
A Supreme Court spokeswoman did not immediately respond when asked for further comment on the new letter.
ExxonMobil and Suncor are seeking to toss out the Boulder lawsuit. The companies want the high court to shut down this style of claim before it spreads.
Local governments have tried to use state courts to pull large damage awards from energy producers over global climate effects. Industry lawyers see those cases as a backdoor around federal policy and national energy needs. A clear Supreme Court rule against them would have mattered far beyond Colorado.
With Alito out, that path narrows. Eight justices will hear the arguments. Any even split would leave the lower-court result in place for this dispute and give other plaintiffs a green light to keep filing.
Some conservatives also called for liberal Justice Elena Kagan to step aside. The push centered on a controversy over a climate chapter in a reference manual for judges. Kagan wrote a brief foreword to the manual and recently told lawmakers she never read the chapter in question.
She remains on the case. Alito does not.
Activists treated Alito’s energy holdings as disqualifying even after the court said he lacked a financial stake in the named parties and after counsel said recusal was unnecessary. The same standard was not forced onto Kagan over the manual fight.
The letter itself is spare. It announces only that Alito will not continue. It does not cite stocks, prior recusals, or outside pressure. The effect is plain anyway: one conservative vote is gone on a case the energy industry viewed as a shield against a wave of state-court climate verdicts.
Oral argument is set for next week in Washington. Boulder’s claim, the companies’ bid to end it, and the unresolved national stakes now head to a short-handed court.
When activist suits chase billions through state courts, and recusal campaigns thin the bench only on one side, the law loses the steady majority voters expect to settle hard national questions.
