Justice Alito’s Duty To Sit

Liberal activists are banging the recusal drums again, demanding that a conservative Supreme Court justice step aside from a case in which the left has taken an interest. This time it’s Justice Samuel Alito, and the dispute is over local governments aiming to extort money out of energy companies in the name of climate change. The Nine agreed to hear Suncor v. Boulder County, and self-proclaimed watchdogs want Justice Alito to ignore his “duty to sit.” That’s the term Chief Justice Rehnquist used to describe the responsibility of the high court’s members to eschew recusal in cases where it is not necessary. That guidance applies in the current dispute, because “Justice Alito does not have a financial interest in any party,” a high court spokeswoman tells NBC News. She reports, too, that the high court’s own legal counsel confirmed that “his recusal is not required.” This fails to placate the agitators who, as is often the case in recent recusal rhubarbs, seem eager to tilt the outcome of a dispute by altering the personnel on the high bench. Mother Jones, parroting accusations by “government watchdog groups,” gripes that Justice Alito “may be violating court ethics codes by participating in certain cases that could benefit Big Oil.” Justice Alito, per Mother Jones, is the only justice “with holdings in energy companies.”Groups like the League of Conservation Voters and Center for Biological Diversity reckon that Justice Alito’s “irregular recusal practice in oil and gas industry-related cases is undermining public confidence in the impartiality of the Court.” That’s a reference to an earlier stage in the litigation, when in 2023 Justice Alito stepped aside when the court rejected energy company suits in several states that were trying to hold the corporations liable for climate change.At that time, the high court spokeswoman said, Justice Alito had “inadvertently recused” himself from the Colorado case “because it was considered at the same time as other cases where the justice did have a financial interest in the parties.” 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.” Yet per Mr. Roth: “Justice Alito shouldn’t own these stocks to begin with.”Mr. Roth’s pecksniffery bespeaks the anti-capitalist, if not downright Jacobinical, tendencies of the high court’s critics on this head. What basis does any activist have for directing the investment decisions of the justices? More to the point, though, Justice Alito is following Rehnquist’s logic in refusing the step aside. The chief justice’s recusal remarks emerged in the case of Laird v. Tatum in 1972, when he was an associate justice. Rehnquist faced calls to recuse himself in the dispute because he had previously before Congress given testimony on the matter. Yet Rehnquist asserted that judges have “a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” This principle, he said, “ is even stronger in the case of a Justice of the Supreme Court,” where no substitutes are available to fill in for a recusing justice. That can lead to split decisions.The result, Rehnquist warned, would be “an affirmance of the judgment below, leaving “the principle of law” in the dispute “unsettled.” That could well suit the liberal activists in Suncor, which is on appeal from the Colorado Supreme Court. The high court’s code of conduct cautions, of recusal, that the “loss of even one Justice may undermine” what it calls the “fruitful interchange of minds which is indispensable” to its “decision-making process.”Chief Justice Roberts, too, has pointed out that “the Supreme Court does not sit in judgment of one of its own Members’ decision whether to recuse.” His insight speaks to the aim of the liberal activists clamoring for Justice Alito to step aside. Such second-guessing over recusal would pose “an undesirable situation,” the chief justice said, “in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

Justice Alito’s Duty To Sit

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