Supreme Court Justice Samuel Alito recused himself from Suncor Energy Inc. v. County Commissioners of Boulder County on Sept. 28, a move Jonathan Turley argues should prompt the court to adopt blind trusts for all justices. The case, which involves energy company liability for climate change nuisance actions, has oral argument set for Oct. 5.
In a letter released by Supreme Court Clerk Scott Harris, Alito stated he "will not continue to participate" in the matter. Boulder County brought suit against energy firms, alleging they knowingly worsened climate change while deceiving the public. The Colorado Supreme Court ruled in favor of the city and county, finding that such lawsuits are not barred by federal preemption. If the lower court decision stands, companies could face potentially thousands of similar climate change lawsuits.
Turley notes that the recusal reduces the panel to eight justices. With Alito previously believed to favor barring such actions, the loss of another conservative justice could result in a 4-4 tie, leaving the lower court ruling unchanged. While the court's letter did not specify a reason for the recusal, 30 organizations had asked the Senate Judiciary Committee to investigate Alito's involvement due to his financial interests in energy companies. The court previously responded to media inquiries by stating Alito had no financial interest in any party to the case and that legal counsel advised no recusal was necessary. However, Turley argues that the standard is whether a reasonable person could question his impartiality, noting Alito appears to hold investments in other energy companies. This is not the first time Alito has withdrawn from an oil industry case; he also withdrew shortly before arguments in a separate matter earlier this year.
Turley points to the Ethics in Government Act of 1978, which established financial disclosure requirements for high-level government officials, including Supreme Court justices. While justices file public financial disclosure statements, they are not required to place investments in blind trusts. In a blind trust, an official has no control over or knowledge of specific assets held. Turley contends that since other federal officials must use such trusts, there is no reason for justices to be exempt. He cites American Isuzu Motors v. Ntsebeza (2008), where the court affirmed an appellate ruling in a $400 billion lawsuit without a hearing after four justices recused themselves due to business interests.
Turley asserts that justices should either be active investors or sit on the court, not both. While some judges use diversified mutual funds or ETFs to avoid controlling micro-allocations, they still retain knowledge of financial interests in certain areas. Although legislation has been introduced to mandate blind trusts and Congress might consider defraying the costs involved, Turley suggests it would be simpler for justices to voluntarily adopt the practice. He concludes that setting aside certain privileges is part of the obligation of holding such a high office.