Justice Alito Defaults on the Duty To Sit

Justice Samuel Alito’s recusal from the high stakes climate case of Suncor v. Boulder, to be argued on October 5, strikes us as a rare error from the legal titan. A letter on Monday from the court’s clerk says that the justice “has determined that he will not continue to participate in this case.” The case is one in which Colorado localities seek damages under laws holding energy companies liable for climate change. The damages could be stratospheric. Justice would have been better served if this justice had held the line. A high court spokesman said in May that because the justice did not hold a “financial interest in any party” the Supreme Court’s counsel concluded that Justice Alito’s “recusal is not required.” These columns noted at the time that leftist groups were braying for Justice Alito’s recusal in order to “tilt the outcome of a dispute by altering the personnel on the high bench.”Even such an alert watchdog of the justices as Fix the Court’s Gabe Roth concedes that “stock ownership in one oil company does not require recusal in every case involving the oil industry.” Politico reports that Justice Alito is, along with Chief Justice Roberts, “one of just two justices to hold investments in individual companies, including in fields other than energy.” An earlier recusal from Justice Alito on this case was “inadvertently” done.Justice Alito — and the court — strike us as having had it right back in May when they abjured recusal, especially in a dispute as weighty as Suncor. The reason is the “duty to sit” expounded on by Chief Justice Rehnquist. That obligation holds that justices have an obligation to hear a case if recusal is not absolutely necessary. Its corollary is the “rule of necessity,” which teaches that unlike all lower court judges, there are no surplus Supreme Court justices to serve as substitutes. Rehnquist declared that “a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Justice Antonin Scalia added the coda that “Even one unnecessary recusal impairs the functioning of the Court.” Justice Alito’s recusal heightens the possibility that the court could reach a deadlock, resulting in a stalemate that leaves the law unresolved. Even a court tilted toward the right could end up tied. The code of conduct the Supreme Court adopted in 2023 mandates that justices are required to recuse themselves from “a proceeding in which the Justice’s impartiality might reasonably be questioned.” That is defined as a circumstance in which “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” That language echoes the statutory standard.Chief Justice Roberts advises justices contemplating recusal to turn to a more antique code of ethics, one set down by Chief Justice Taft in 1924. Taft mandates that judges — and justices — “should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety.” Chief Justice Roberts glosses that “Such concerns have no role to play in deciding a question of recusal.” Even a titan like Justice Alito could stand for a reminder.

Justice Alito Defaults on the Duty To Sit

Justice Alito Defaults on the Duty To Sit

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