Alito Recusal Raises New Question: Should Supreme Court Be Hearing Suncor v. Boulder At All, Says Consumer Watchdog

Did Alito's vote put Suncor v. Boulder before the Supreme Court? Alito recused when Court rejected Honolulu climate case presenting nearly identical question, but participated as Court granted Suncor review before stepping aside days before argument

LOS ANGELES, Sept. 30, 2026 /PRNewswire/ -- Justice Samuel Alito's last-minute and unexplained recusal from Suncor v. Boulder raises a question largely overlooked since his decision to step aside: What role did Alito play in the Supreme Court's decision to hear the case in the first place, and should the Court proceed if his participation was necessary to grant review?

The Supreme Court does not disclose how the Justices voted when it granted Suncor review on Feb. 23. Under the Court's longstanding "Rule of Four," at least four Justices must vote to grant a petition for certiorari. That makes the contrast between Suncor and another climate case especially striking.

In January 2025, the Court denied review in Sunoco v. Honolulu, with Alito recused throughout the Court's consideration of the petition. The question presented asked whether federal law precludes state-law claims seeking redress for injuries allegedly caused by interstate and international greenhouse-gas emissions. The Supreme Court docket expressly states that "Justice Alito took no part in the consideration or decision" of the petition.

A year later, Suncor v. Boulder presented virtually the same question: whether federal law precludes state-law claims seeking relief for injuries allegedly caused by interstate and international greenhouse-gas emissions. This time, Alito did not recuse during the Court's consideration of certiorari, and the Court granted review. Now Alito has recused just days before oral argument.

"We know Alito was recused when the Court declined to hear Honolulu, and we know he was participating when the Court decided to hear Suncor. What we don't know is how he voted or whether there would have been four votes to take Suncor without him," said Alexandra Nagy, Organizing Director of Consumer Watchdog. "His recusal now makes those unanswered questions impossible to ignore. If Alito concluded he should not participate in deciding this case, it is reasonable to ask what that means for his participation while the Court was deciding whether to hear it in the first place."

The contrast of the two climate cases is straightforward:

The Supreme Court docket shows that Suncor also remained under consideration for months before review was granted. After briefing was complete, the petition was distributed for the Court's conferences of Dec. 12, Jan. 9, Jan. 16, Jan. 23 and Feb. 20, with cert finally granted Feb. 23. The public record does not reveal why the petition was repeatedly redistributed or how individual Justices voted.

"The Court considered Suncor across five conferences before ultimately taking the case, which only makes the undisclosed cert vote more important," said Nagy. "We cannot say Alito supplied the fourth vote because the Court keeps those votes secret. But after his recusal, the public is left with a fundamental unanswered question: Would this case be before the Supreme Court if Alito had recused at the cert stage as he did in Honolulu?"

Consumer Watchdog is not alone in raising questions about Alito's participation at the cert stage.
Inside Climate News reported following Alito's recusal that a "lingering question" remains about whether his vote was decisive in securing Supreme Court review. The New Republic previously raised Alito's participation when cert was granted, while a coalition letter to the Senate Judiciary Committee questioned the change in his recusal practices.

The issue does not have a simple procedural answer. Supreme Court cert votes generally are not public, and the rules governing what happens when a Justice recuses after participating in the decision to grant review are far from clear.

The Court does, however, have the ability to dismiss a writ of certiorari as improvidently granted — commonly called a "DIG" — when it concludes after granting review that it should not decide the case. Such dismissals can occur before oral argument or afterward.

"We don't know whether Alito's vote made the difference, and that uncertainty is precisely the problem," said Nagy. "The Court is preparing to hear a case of enormous national consequence after one of the Justices who participated in granting review concluded days before the hearing that he should no longer participate. If Alito was the fourth vote, this case should be dismissed."

Suncor v. Boulder is scheduled to be the opening oral argument of the Supreme Court's new term on Monday, Oct. 5. The case could affect climate accountability lawsuits around the country. Numerous cases involving ConocoPhillips and Phillips 66 — companies in which Alito owns individual stock — are stayed pending its outcome.

SOURCE Consumer Watchdog