COMMENTARY: Alito feared an eight-justice Court, and he creates one in Suncor without saying why

One line from the clerk

Washington, September 28

In 2023, Samuel Alito wrote that a Supreme Court short of justices would see its work “substantially disrupted and distorted.” On September 28, he stepped away, without a word of explanation, from the first case of the new term.

The news fits in a letter from the clerk, Scott S. Harris, addressed to the lawyers for both parties.

One sentence: “Justice Alito has determined that he will not continue to participate in this case.”

No reason. No context. Nothing else.

The letter does not say why. The letter does not say since when. The letter does not say whether the justice has sold anything. The letter does not say whether he will come back. The letter does not say what he thinks.

Two recipients, Kannon K. Shanmugam and Kevin K. Russell, counsel of record. One signature. That is all.

One week before argument

The case is Suncor Energy v. County Commissioners of Boulder County. Docket 25-170. Argument set for October 5.

Lawyers have spent months getting ready to argue before nine justices. They know each one’s favourite questions, silences and impatiences.

They have seven days left to rewrite their answers for eight.

One line is enough to remove a justice. None explains it.

The 2023 memorandum

A full bench

The paradox lies in his own words.

In 2023, refusing to step aside from a tax case, Alito wrote a memorandum. If justices recused in such cases, they would regularly sit with fewer than nine, and the Court’s work would be “substantially disrupted and distorted,” Inside Climate News recalls.

He was defending the full Court. He was defending the continuity of its work. He was defending the presence of every justice.

Three years later

Three years later, it is his absence that leaves the Court at eight, in the most closely watched climate case of the term.

And the most likely cause of that absence, according to CBS, is the one he never resolved: his shares in oil companies.

The justice who feared a short bench has just created one. Nine, then eight.

He dreaded an eight-justice Court. He signed it into being.

Suncor, a Canadian oil company

Boulder against Exxon and Suncor

Boulder County and the city of Boulder, Colorado, have been suing Exxon Mobil and Suncor in state court since 2018, Reuters recalls.

They accuse the companies of contributing to global warming and of hiding or misrepresenting the dangers of their products, according to CBS. They are seeking billions of dollars.

Suncor, a “Canadian oil giant” in the words of Inside Climate News, runs two refineries in Colorado.

Despite the floods and fires Boulder puts on the oil companies’ tab, the case will turn first on a question of which court gets to decide.

The question before the Court

The Colorado Supreme Court let the suit go forward on May 12, 2025. The oil companies asked Washington to stop it.

The Court agreed on February 23, 2026, and added a question: does it even have jurisdiction to hear the case at this stage?

The Trump administration backs Exxon and Suncor, according to Reuters: federal law, it argues, bars Boulder’s claims. The government filed its brief on May 21, and asked on July 28 to argue as well.

The oil companies accuse Boulder of trying to dictate energy policy for the whole country, The Hill sums up. Boulder answers that it has the right to make them pay for the harm done.

On the Court’s docket, the petitioner is Suncor Energy (U.S.A.) Inc. The American subsidiary of a Canadian group.

Two oil companies. One county. Billions.

Its budgets, Boulder says, already pay for repairs, emergency response and public health.

Support poured in, according to the docket. House Majority Leader Steve Scalise and 102 other members of Congress. The American Petroleum Institute. Alabama and other states. On the other side, Colorado, New York City and former administrators of the Environmental Protection Agency.

A Canadian oil company, a Colorado county, and eight justices.

No Suncor shares

What the Court said in May

In May, a Court spokesperson answered the critics: “Justice Alito does not have a financial interest in any party.” The Court’s legal counsel had told him recusal was not required, SCOTUSblog recalls.

That was accurate. Alito holds neither Exxon nor Suncor. It was also incomplete.

The same month, a coalition of watchdog groups, described by SCOTUSblog as left-leaning, asked the Senate Judiciary Committee to look into his “substantial holdings” in oil.

What his portfolio says

His latest financial disclosure dates from August, Inside Climate News writes. Shares in more than 25 companies. Of those, 7 are in fossil fuels. And a mineral interest in Oklahoma worth up to US$250,000.

The Hill places that mineral interest in Grady County. This term, by its count, Alito has already stepped aside from 22 petitions the Court denied, and from one case it agreed to hear.

Among his shares: ConocoPhillips and Phillips 66. Two companies targeted by similar climate suits, Reuters specifies.

State judges have paused 11 of those suits pending the ruling in the Boulder case. According to the group Consumer Watchdog, cited by Inside Climate News, Alito holds shares in companies targeted in every one of them.

One line, no reason, eight justices.

This commentary reads the recusal first as a revelation. It shows that a Supreme Court can have its makeup set by a private portfolio, and announced without a single sentence of explanation.

No shares in this case. Shares in all the ones behind it.

The justice who recuses most

More than any colleague

Alito recuses more often than any other justice, according to The Hill.

It is the direct consequence of his portfolio. He is one of the only justices to hold individual stocks, the paper writes.

Usually, these recusals are announced early. Not this one.

In 2024, a Bloomberg report described him as the only justice holding stakes in more than two dozen companies. MS NOW points that out again.

Funds, not stocks

Most justices own mutual funds, which do not create the same conflicts, according to the same article.

A fund dilutes. A stock singles out.

A ConocoPhillips share carries a company’s name. And that name keeps coming back in climate suits.

The remedy is known. It was not chosen.

A fund dissolves. A stock has a name.

The February vote

Four votes to hear it

There is something worse than the late notice. There is the order of events.

Alito took part in the February conference where the Court decided to hear the case, The Hill and Inside Climate News report.

Granting a case takes at least four justices out of nine. The vote is secret. We do not know whether Alito was one of the four.

Four votes. A secret ballot. One justice in the room.

Nine denials from 2023 to 2025

Between 2023 and 2025, the Court had denied oil company petitions 9 times, Inside Climate News writes. Roughly the same question, each time. Alito had recused himself from all of those conferences but one.

He had also stepped aside from the Suncor case in 2023, at an earlier stage, Reuters recalls.

Almost always absent when the Court said no. Present when it said yes. Absent when it is about to rule.

I do not know what this calendar means. Nobody does. That is exactly the problem.

Present to open the door, absent to walk through it.

The ideal vehicle

Exxon’s 2022 brief

In 2022, Exxon pitched the Boulder case to the Court as the “ideal vehicle” to settle the question, Inside Climate News recalls.

Why ideal? Because it involved fewer defendants, the oil company wrote, and was therefore “less likely to present recusal issues.”

Ideal. Fewer defendants. Fewer recusals.

The word is right there in the brief. Recusal.

Four years later

Four years later, the case chosen to avoid recusals has its recusal.

The Court turned the case down at the time. Alito had stepped aside then “inadvertently,” a spokesperson later told NBC, Inside Climate News reports.

Exxon’s calculation was sound on paper. It had not accounted for one justice’s portfolio.

The case without recusals now carries the most visible one.

Paul Singer’s flights

A Suncor investor

There is also a name that keeps turning up in this file. Paul Singer.

His investment firm is a major Suncor investor, Courthouse News writes.

Alito accepted private jet flights from him. More than US$100,000 in all, according to ProPublica revelations picked up by the same outlet. Among them, a fishing trip to Alaska in 2008.

What this link proves

This link proves no wrongdoing. This commentary does not accuse the justice of ruling for Singer. No judgment says so.

A flight. A fishing trip. An investor.

It proves something else: that a reasonable reader could have doubts.

And that is exactly the standard the Court set for itself.

Reasonable doubt does not require wrongdoing. It requires a link.

The November 2023 code

Impartiality in question

In November 2023, the justices adopted their first code of conduct.

It calls for a justice to step aside when his “impartiality might reasonably be questioned,” according to SCOTUSblog. Including when he has a financial interest in the subject matter of the dispute.

In the subject matter. Not only in a party.

Each justice decides alone

But the code provides for no review and no required reason. Justices are not obliged to explain their recusals, SCOTUSblog notes.

In 2011, Chief Justice John Roberts defended this system in which each justice decides alone, with no review by colleagues. “I have complete confidence in the capability of my colleagues,” he wrote, as cited by Inside Climate News.

And yet that confidence has no check. No colleague can review a justice’s decision about his own recusal.

Confidence has a limit. It cannot be verified. One rule, no referee.

A rule each justice applies alone binds only his conscience.

January, a detailed letter

Chevron v. Plaquemines

The strangest part is that the Court knows how to explain.

In January, the same clerk had announced another Alito recusal. Less than a week before another oil argument: Chevron v. Plaquemines Parish. With a reason: his financial interest in ConocoPhillips, according to SCOTUSblog.

The letter even explained why the justice had first believed he could sit.

In April, without him, an eight-justice Court ruled unanimously for Chevron, MS NOW notes. His absence apparently changed nothing.

September, a silent letter

Eight months later, the letter is silent.

In January, a reason, a timeline, a company named. In September, one sentence.

The same Court. The same clerk. The same justice.

And yet two opposite ways of speaking to the public.

In January, a reason. In September, a silence.

Boulder, 2013 and 2021

Eighteen hundred homes

Behind the file, there is a county.

Boulder’s lawsuit was born five years after the historic floods of 2013, Inside Climate News recalls. 1,800 homes destroyed. More than 100 miles of road torn away. Billions of dollars in damage.

After a flood, everyone knows what comes next. Basements full of mud. Furniture on the sidewalk. A damp smell that stays in the walls for months.

Two lives and 6,000 acres

Three years after the complaint was filed, the most destructive fire in Colorado’s history swept through the area. It cost two people their lives and burned 6,000 acres, according to the same outlet.

Boulder says it has paid those costs, and must keep paying them. That is what the lawsuit is about.

The plaintiffs argue that the oil companies knew for years what their products were doing to the climate, according to Inside Climate News. And that they misled the public.

Eighteen hundred homes. Two lives. Billions.

The people who lost their homes sit in no conference. They are waiting for an answer the Court may never give.

The mud of 2013 awaits a ruling eight justices may not deliver.

Four to four

What a tie does

At eight, the Court can split down the middle.

A four-to-four tie would, in practice, affirm the Colorado ruling, MS NOW’s legal site explains. The very ruling the oil companies want overturned.

If the Court splits, Boulder carries on in state court. If the Court splits, the industry does not get its national rule. If the Court splits, the suits paused elsewhere would be left without a compass.

A tie. No doctrine. Nothing settled.

The Court usually decides its argued cases before July, MS NOW notes. So Boulder will know, by next summer at the latest, whether eight justices managed to decide.

Dozens of suits on hold

And that is the answer dozens of cities and states are waiting for, and the one the industry was demanding.

The Court has six conservative justices out of nine, Reuters recalls. Without Alito, the majority holds, but the margin shrinks.

If Alito was going to vote with the oil companies, his recusal costs them a vote, MS NOW notes. If not, it changes nothing. Nobody will ever know.

A tie settles nothing. It leaves everyone waiting.

The right call, made late

What even his critics say

It has to be said plainly: stepping aside was the right call.

Even Consumer Watchdog, which demanded the recusal, says so. It is “the right decision, and one he should have made from the start,” according to its director, Alexandra Nagy, cited by Inside Climate News.

And the justice may have reasons we do not know. A biography published this year offers an explanation. The shares were reportedly inherited by his wife from her parents. She reportedly keeps them for sentimental reasons.

The problem that remains

I grant this without reservation. An inheritance is not wrongdoing. A recusal is not a confession.

He applied the rule in January, in the Chevron case. He is applying it today.

And Alito is not alone. The only other justice who holds individual stocks is John Roberts, Inside Climate News writes. A semiconductor services company. A biotechnology firm.

Professor Arthur Hellman of the University of Pittsburgh points to a limit. This recusal does nothing about the problem the justice himself raised in 2023. A Court disrupted by absences.

As long as he keeps those shares, Hellman warns, every oil case will reopen the same question.

Why does a justice hold shares in a company whose industry will come before the Court? Professor Louis Virelli of Stetson University asks the question, according to Inside Climate News.

And yet the September 28 decision remains the right one. It just comes late.

The right move at the wrong moment does not close the question.

A reason, not a line

What the recusal reveals

Here is what the September 28 letter reveals.

The bench of the highest court in the United States can change a week before argument. On the decision of a single justice. For a reason he does not have to give.

And that justice had himself warned, in 2023, about the cost of such absences.

I am uneasy writing this. I respect institutions that resist the moods of the moment. This one also resists transparency.

The Canadian reader

A Canadian oil company, two refineries in Colorado, billions at stake, and eight justices instead of nine.

In our own courts, which rule would we want: a silent line, or a written reason?

One sentence. One Court. Cities waiting.

On October 5, the Court will hear the case with eight.

The letter will stay in the file.

An eight-justice Court, made by one line and no reason.

Sources:

Primary Sources:

• Supreme Court of the United States — clerk Scott S. Harris’s letter on Alito’s recusal, September 28, 2026
• Supreme Court of the United States — docket 25-170, Suncor v. Boulder, September 2026
• Reuters — Alito will not take part in the oil companies’ climate case, September 28, 2026

Secondary Sources:

• SCOTUSblog — Alito’s recusal, the code of conduct and the January letter, September 28, 2026
• Inside Climate News — Alito’s portfolio, the February vote and the paused suits, September 28, 2026
• Courthouse News Service — oil holdings and ties to Paul Singer, September 28, 2026