Justice Samuel Alito has recused from the Supreme Court's major climate liability case against oil companies just days before arguments, leaving the Court without a full bench.
Fox News Digital reported that Supreme Court clerk Scott Harris informed the parties' lawyers by letter on Monday that Justice Samuel Alito would not take part in Suncor Energy Inc. v. County Commissioners of Boulder County. No explanation came with the notice.
Oral arguments had been set for less than a week later to open the 2026-27 term. The case asks whether Boulder, Colorado, can deploy state-law tort claims to sue oil and gas companies over their alleged role in climate change.
Reuters reported the arguments are scheduled for October 5, and the clerk's letter stated Alito "has determined that he will not continue to participate in this case." Alito owns stock in oil and gas firms including ConocoPhillips and Phillips 66, though not in the specific defendants Exxon Mobil and Suncor Energy.
He had already stepped away at an earlier stage of related litigation. Conservatives watching the docket say the real fight is not climate science but whether cities can force national policy through lawsuits instead of legislation.
Steve Cox, former Alaska attorney general and counsel to Gov. Mike Dunleavy, described the tactic on a Tuesday conference call. Cities and states are using mass tort and public nuisance suits in state courts "in a coordinated way to effectuate the same kind of a result, but just without having to go through their democratically elected officials."
O.H. Skinner, former Arizona solicitor general and executive director of the Alliance for Consumers, put it more bluntly during the same call.
Skinner told the group:
"It's not a fight about climate change. It's not a fight about climate science. It's a fight about whether we're going to allow this maneuver to be what reshapes American society, and that's why I think everybody should care, irrespective of their views on climate change or their views on how to fix this problem or that problem. Do you want courts as our primary policymakers?"
That framing matches the core dispute. Boulder County commissioners want state tort law to pin climate costs on energy producers. Opponents call it an end-run around Congress and state legislatures.
Similar pressure on the Court has surfaced in other recent fights over its size and role, including when House Democrats rejected a bid to lock the bench at nine seats.
Alito recused in January from Chevron USA Inc. v. Plaquemines Parish, a coastal erosion dispute out of Louisiana, because he owned stock in ConocoPhillips, the parent of one party. Breitbart noted a coalition of 30 organizations had urged the Senate Judiciary Committee to examine his oil and gas holdings before this latest decision.
The Washington Examiner placed the current recusal roughly a week before arguments and noted Alito has served since his 2006 appointment by President George W. Bush. The clerk again used the same bare phrasing: Alito "has determined that he will not continue to participate in this case."
Carrie Severino, president of JCN, told Fox News Digital she does not expect the absence to flip the result.
Severino said:
"Justice Alito does not take his duty to sit lightly. We do not know why he recused himself, as the reason has not been made public, but I do not expect his recusal to ultimately change the outcome of Suncor v. Boulder."
Skinner made the same point while warning that constant left-wing demands for recusals hurt the institution. "It doesn't help the court when they don't have their full complement," he said, adding that Alito reached the choice on his own considerations and did not do so lightly.
False alarms about justices leaving the bench have already tested public patience, as when NPR's inaccurate Alito retirement story drew sharp pushback.
While Alito stepped aside, attention also turned to Justice Elena Kagan. She wrote the foreword to the Reference Manual on Scientific Evidence, which once contained a climate science chapter later criticized by Congress and Republican attorneys general as biased. The chapter was removed.
In July, more than a dozen legal groups, in a letter Severino helped lead, urged the Senate Judiciary Committee to investigate. Severino argued Kagan's endorsement "continues to raise questions about her ability to impartially decide the case" and said she hoped Kagan was "taking her own ethical obligation seriously."
No public response or recusal from Kagan appears in the record so far. The contrast is plain: one justice left the case without fanfare; another remains under sustained pressure for past writings on the same subject.
Proposals to remake the Court keep returning, from Jim Clyburn's push to expand it to 13 justices to broader fights over its independence.
The practical effect is an eight-justice bench for a dispute that could open or close the door to dozens of similar local climate suits. Skinner and Severino both judge the recusal unlikely to decide the outcome. Still, every missing vote raises the odds of a 4-4 split that leaves lower-court results in place.
Republican critics of the Boulder approach say the pattern is clear. Local officials who cannot win national energy policy through elected branches are turning to friendly state courts and tort theories to impose it anyway. The Supreme Court now must decide whether that route is lawful.
Other justices have faced their own high-stakes vehicles for revisiting precedent, including questions that could give Clarence Thomas a path to revisit the 2004 Locke v. Davey ruling.
Alito's unexplained exit changes the head count. It does not change the underlying choice the remaining justices face: whether cities may use state tort law as a substitute for legislation on climate and energy.
When local governments treat courts as the first stop for national policy, voters lose the chance to hire and fire the people who make the rules. That is the stake that remains after one justice steps aside.