Yesterday, Supreme Court Justice Samuel Alito recused himself from one of the term’s most important cases: Suncor Energy Inc. v. County Commissioners of Boulder County. As I have previously discussed, the case involving the liability of energy companies for nuisance actions tied to climate change could have sweeping implications for the country. Justice Alito should be commended for avoiding even the appearance of a personal interest or a conflict in the case. However, the controversy should prompt the Court to explore a longstanding problem for justices in holding financial interests that can conflict with their duties. The solution is simple: justices need to use blind trusts.
Supreme Court Clerk Scott Harris released a letter revealing that Alito decided he “will not continue to participate” in Suncor Energy Inc. v. County Commissioners of Boulder County.
Suncor Energy, Boulder sued energy companies under “theories of public and private nuisance, trespass, unjust enrichment, and civil conspiracy, claiming that they knowingly contributed to climate change while misleading the public about its impacts.” The Colorado Supreme Court ruled for the city and the county in finding that such lawsuits are not barred by federal preemption. If such lawsuits are allowed to go forward, it would expose companies to potentially thousands of climate change lawsuits. Oral agument is set for Oct. 5,
The recusal is a blow for challengers who believe that the opinion could be close and Alito was believed to be on the side of barring such actions. It is now down to 8, so a single loss of another conservative could result in a 4-4 tie — leaving the lower court decision unchanged.
While the letter did not give a reason, critics had called for Alito’s recusal due to his financial interest in energy companies which could benefit from the decision.
That included 30 organizations which jointly asked the Senate Judiciary Committee to investigate his involvement in the case. Notably, the court responded to media inquiries by declaring that Alito had no financial interest in any party to the case and that legal counsel had told him that there is no need to recuse himself.
Yet, the standard is whether a reasonable person could question his impartiality and, while he had no interest in the parties, he appears to have investments in other energy companies. Justice Alito previously withdrew shortly before arguments in a separate oil industry case earlier this year.
The Ethics in Government Act of 1978 (EIGA) established financial disclosure reporting requirements for many high-level government officials and employees, including the Justices of the Supreme Court. Supreme Court Justices file publicly available financial disclosure statements that report certain financial transactions. However, they are not required to put their investments into a blind trust.
Justices should be able to have investment portfolios, but they can hold such investments in blind trust or qualified blind trust. In a blind trust the justice will “have no control over, will receive no communications about, and will (eventually as existing assets are sold and new ones obtained by the trustee) have no knowledge of the identity of the specific assets held in the trust. As such, once a blind trust is established and new assets obtained, an official will not need to (and will not be able to) identify the particular assets 13 5 C.F.R. § 2635.403(b).”
Other federal officials must use such trusts and there is no reason why justices should be exempt, in my view. This has been a continual and embarrassing problem. Years ago, the Court affirmed an appellate ruling in a major case involving a $400 billion lawsuit in American Isuzu Motors v. Ntsebeza (2008) without a hearing after four justices had to recuse themselves (Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito Jr).
The business interests of justices should not interfere with the business of the Court. You should either be an active investor in the markets or a justice, not both. The public has a reasonable expectation that, in seeking this high office, justices are willing to set aside certain privileges or interests. This is one of them.
This is not to cast aspersions on the justices. These recusals show that members, including Justice Alito, are cognizant and committed to avoiding even the appearance of a conflict of interest. Moreover, some judges and justices resolve this question by using diversified mutual funds or ETFs. where the justice does not control the micro-allocations within the fund. However, there is still knowledge of financial interests in given areas.
This is not a costless obligation for justices. Blind trusts add costs (which Congress may want to consider defraying) and can be complex. However, the business of the Court is too important to be routinely compromised or complicated by these financial interests.
While legislation has been introduced along these lines, it would be simpler for justices to voluntarily adopt this practice.
Consider it is the price of being one of nine. If you want to sit on this Court, you have to do justice which is only fully possible if your investments, like justice itself, are blind.
Jonathan Turley is a law professor who teaches a class on the Constitution and the Supreme Court and is the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Only Republicans are bound by these ethics shenanigans. Having morals will be the downfall. What a world.
I am surprised any Justice’s investments would not be in a blind trust. Amazing.
Should be law
Establishing a voluntary custom of using a blind trust sounds ideal. This isn’t a constitutional imperative, but departures from the appearance of impartiality can damage the Court, and do raise a reasonable claim of violating the “during good behavior” limitation on tenure.
“a voluntary custom of using a blind trust…”
“Voluntary” is the key for me. If it was mandatory, it could discourage qualified justices from serving. Another potential issue to me is the length of time many justices serve. Clarence Thomas has been a SCOTUS justice for nearly 36 years. In financial terms, that is virtually a lifetime. Relegating investment assets to a blind trust for one or two 4-year terms of elected office is one thing; a mandated “hands-off” policy for more than three decades constitutes a nearly permanent loss of direct control over those assets. I also fear that mandating such a policy by law would somehow be used by the Democrats, should they regain power, to accelerate their undoubted objective to pack the Court with young Marxists, and thereby achieve effective permanent control of Federal government irrespective of the results from subsequent elections.
If having potentially unqualifying investments that would create a conflict of inerest is more important to someone than a seat on the SCOTUS, that person does not belong on the SCOTUS.
You speak of “permanent control of the federal government irrespective of the results (of) elections”—that’s what we have now. Republicans have the SCOTUS, the White House, the Senate adn the House, and the country is in crisis, with Trump’s illegal tariffs, a war started based on a lie, which caused closure of the Strait of Hormuz and fuel prices to shoot up. Trump LIED to get into office by promising no new wars, immediately dropping prices of groceries, fuel, energy, etc, but still managed to get only 1.48% of a plurality over Kamala Harris–with LESS THAN HALF of the popular vote. After lying about not knowing anything about Project 2025, he immediately took on most of the architects of that document and signed, on the first day, 180 Executive Orders they drafted for his signature. MAGA is trying to force the “unitary executive theory” on all of us, despite knowing that most Americans oppose Project 2025 and MAGA and the unitary executive theory.
““permanent control of the federal government irrespective of the results (of) elections”—that’s what we have now. Republicans… ”
Republicans are not seeking to make functional changes to the relationships between the three branches of Federal government that would assure them permanent unassailable power no matter what the voters decide in the future. Prominent members of the Democrat party, including many of those holding elective office, are actively advocating such measures, and promising to put them in place if they ever regain control of both Houses of Congress. The most egregious abuse countenanced is packing SCOTUS. Add enough young, committed “democratic socialists” (current jargon for Marxist) to the Supreme Court, who will no doubt aggressively and reflexively implement their agenda no matter what the text of the Constitution requires, and the Republic will be destroyed in short order, with the only hope for the restoration of individual Liberty becoming a successful violent revolution that overturns the entire Federal government. I very much hope that things do not come to that pass, but I fear that idiots like you would like nothing better.
Here here,Grima
Anonymoose
Republicans ALREADY have made fundamental changes to the relationships between the 3 branches of government by allowing Trump to run roughshod over the Constitution. They refuse to comply with their Constitutional oath that THEY, not Trump, control how our money is spent. Where does Trump get off promising $5,000 checks to each citizen, but only IF Republicans win? Where does he get off creating “Trump Accounts” with our money, when we are over $40 Trillion in debt? They let him get away with tearing down part of the White House to build a vainglory ballroom to honor him–after lying about the cost being covered by donations, and without any permission from historic preservationists. They let him get away with starting and continuing a war based on a lie from Netanyahu–and they keep voting down repeated measures to stop the war–despite the fact that most Americans, including many Republicans, oppose the war that is costing us billions every day. They are letting him get away with illegal tariffs–even after the SCOTUS said he can’t impose tariffs–he did it anyway, and has issued an embargo on Canadian goods. They are letting him get away with refusing to allow the money allocated for repairs to the JFK Center For Performing Arts to be used to make needed repairs, which resulted in the ceiling collapse, because a court said he couldn’t put his name on the building–that building was created by an act of Congress to honor our assassinated president who was a patron of the arts. He has now closed the center–because performers and audiences won’t go there if his name is on the place. A Republican stopped the vote to prevent Trump from tearing down the JFK Center. Americans strongly oppose Trump putting his name on this monument to our slain president—Republicans DON’T CARE WHAT AMERICANS WANT.
They let him get away with no-bid contracts to campaign donors–the reflecting pool disaster is one such contract– and no-bid government contracts to businesses in which his worthless sons have financial interests. They let him get away with starting an insurrection after he lost in 2020, and then pardoning the insurrectionists who beat up the Capitol Police who saved the lives of members of Congress–by refusing to remove him from office. They do whatever Trump wants them to do–like going after Jack Smith, who rightfully prosecuted Trump for starting the insurrection and stealing classified documents–for which he was indicted by grand juries. They let him get away with protecting the pedophiles who victimized the Epstein survivors, by ignoring legislation requiring release of the files. They are letting him get away with renaming Lake Ontario, the Gulf of Mexico and AI–and won’t enact legislation to rein in AI, despite warnings from insiders that it could kill us–why? Because Trump and his worthless kids are invested in AI. The same is true of data centers they are also invested in, which most Americans oppose without regulation because they drive up the cost of electricity and use up water resources. Notably, data centers are never proposed for areas where the wealthiest live–just where less-affluent live, and they all want tax subsidies and other perks.
Republicans ALREADY “packed” the Supreme Court. After Scalia died in February, with the election coming in November, McConnell denied Obama his pick to replace him; but, after Ginsberg died in September, Republicans shoved Barrett onto the Court with the election coming less than 2 months later on. Over 25 witnesses were lined up to testify against Kavanaugh, but Republicans cut them off. Gorsuch, Barrett and Kavanaugh all LIED about honoring stare decisis on the issue of abortion–planning all along to reverse it. Most Americans favor the Roe v. Wade ruling—protecting a woman’s right to choose up to the age of fetal viability.
Democratic socialists are NOT “Marxists”, and Republicans LOVE socialist programs that benefit them–like tax subsidies for wealthy corporations, corporate welfare, bailouts, privatization of gains but socialization of risks and all sorts of favorable tax treatment–it’s socialist programs for the needy they don’t like–like free school lunches for poor kids, subsidies for child care for low-income workers, Obamacare subsidies–programs which most Americans support–which is why your argument fails, and why polls are favoring Democrats, who want to provide these benefits.
You speak of “what the text of the Constitution requires”–it REQUIRES Congress to decide how our tax money is spent–Republicans are in control of Congress, and they refuse to do their duty.
You make some thought provoking points equal branches in duration and inability to switch out by votes. Pack the court with 35 year old people and there isn’t a possibility of switching out if underperformed should occur.
Check
Anonymoose
OT
The Clancy trial has me stumped. If prosecution had prosecuted 1st degree premeditated step by minute step with bona fide evidence the sanity would have revealed itself. The idea of “wrong” as in moral wrong is misplaced. She knew the act was against the law. Moral wrong doesn’t exist in any criminal act.
What am I not seeing?
Yet, the standard is whether a reasonable person could question his impartiality and, while he had no interest in the parties, he appears to have investments in other energy companies.
Justice Alito is also Roman Catholic so a “reasonable” animal, vegetable or mineral could question his impartiality on eating meat and burning incense.
OTOH, Ketanji “I need a brain” Brown has told us she is not a biologist and she could not define the meaning of the word woman, hence any cases that come before SCOTUS should see Ketanji recuse herself/himself/demself because she lacks an X chromosome in her otherwise XX genome. Justice Sotomayor is Latinx (though definitely not a wise Latina) thus we should have seen her recusal on all matters pertaining to Hispanics because ….reasons
This Alito recusal is crazy. He should not cave to these leftwing thugs
I really wish you MAGAS would stop the “Justice Jackson doesn’t know what a woman is” BS. Bottle blondie Home Ec major—-Marsha Blackburn of Tennessee—tried to set up Judge Jackson by asking her to define “woman”— solely as an effort to disqualify her when a transgender case would come before the Supreme Court in the future. Where does a dumbass hag like Blackburn get off trying to set up a Harvard graduate and the most- qualified candidate ever for the SCOTUS by asking a stupid question like that?
And Blackburn won. The “what is a woman” game has been all over media, blogs, commercials, and legal articles ever since.
You seem to have a real problem with “bottle blondies.” Did you lose your man to one/did you lose your woman to one?
You seem to bring it up in every post. You also mentioned your weight, so we can assume that you are an overweight, darkhaired woman with lotsa revenge and strikes out here on this blog every day.
No, Blackburn displayed what a stupid person she is, trying to set up a Harvard graduate—just like Eric Smith, the Missouri Senator, who embarrassed himself today, trying to set up Jack Smith.
Fake yellow hair has become a MAGA trademark for females—Ivanka, Natalie Harp, Pam Bondi, Melania, Tiffany, etc.. That’s the problem I have with it.
Why do you have to make up stuff and personally insult people who write things you don’t like?
Anon, kjb’s answer signaled her support for lgbt. Title 9 can be changed to women and transwomen. Congress can do that. Any child can answer the question Senator Blackburn asked. She might have followed it by asking what is a transwoman.
Peace, anon, and peace to all bottle blonds.
hey gigi, you are so funny. You named mostly family members, not government or political figures.
How ’bout Jill Biden, Hillary Clinton, Elizabeth Warren, Debbie Wasserman Shultz?,
Oh, don’t forget: your club has the one and only streaked bright-blue-haired member, Rosa Delauro
“Elizabeth Warren”
Bleached blonde hair and phony war paint make a hideous combination.
“You seem to have a real problem with “bottle blondies.” Did you lose your man to one/did you lose your woman to one?”
🔫 🎯 🔥
He would not know his mouth from the backside orifice on the guy next door
The problems with fake bottle blondies–Trump requires it, and anything HE requires of women is per se offensive because he is a raging misogynist. Secondly, they always show their dark roots–which is unattractive, but if they don’t, and keep bleaching their hair to keep up with the roots, their hair takes on that dry, “fried” or “brassy look”–but it’s definitely not natural or even attractive. Oftentimes, unnatural fake yellow hair accentuates the sallow tones of a woman’s complexion, sometimes making them actually look almost jaundiced. A psychological study was done decades ago about why “gentlemen prefer blondes”–the answer is latent pedophilia, according to Dr. Joyce Brothers, who explained that very young children often have naturally blonde hair, which usually darkens as they get older into some shade of strawberry blond, light brown or another. Women with darker hair are not generally less attractive than those with fake yellow hair–for instance, Rita Hayworth, Elizabeth Taylor, Taylor Swift, Heddy Lamar, Julianne Moore, etc.. But it’s the assocation of light, pastel yellow hair with underage children that is the attraction–and, that is sick!
“… get off trying to set up a Harvard graduate and the most- qualified candidate ever for the SCOTUS by asking a stupid question like that?”
======
LOL⬆️⬆️⬆️…
Junior, you missed your calling, in standup comedy 😂😂😂…
Harvard graduate!!! As a DEI admission! SURE 😃 I think she is qualified, but my problem with her is how she’s trying to use herself, in her office capacity as a SCOTUS Justice, as a megahorn for partisan policies… The most qualified was where you went off base by a bazillion miles 😹😹😹
But TY for the funny 🤣, it really made my morning 👍
Here is Justice Jackson’s background (from Wikipedia):
“Jackson was born in Washington, D.C., and raised in Miami, Florida. She received her undergraduate and legal education at Harvard University, where she served as an editor of the Harvard Law Review, and clerked for Justice Stephen Breyer, whose seat she later assumed on the Supreme Court.[3] From 2010 to 2014, Jackson was the vice chairperson of the United States Sentencing Commission. In 2013, she was appointed by President Barack Obama to serve as a district judge for the United States District Court for the District of Columbia. President Joe Biden elevated her to the United States Court of Appeals for the District of Columbia Circuit in 2021, where she served until 2022. Jackson served as a Harvard Board of Overseers member from 2016 to 2022.”
To even get onto the Law Review, one has to be a top student–to be an editor, one has to be one of the best. To be a SCOTUS clerk, one has to be a top student in their law class. She was both a federal District Court and federal Court of Appeals Judge before ascending to the SCOTUS bench. Justice Jackson was the most-qualified person ever to be nominated to the SCOTUS.
That ignorant hag from Tennessee is a Home Economics graduate, and blatant racist–having the temerity to try to set up someone like Justice Jackson with a “gotcha” question like that proves her disrespect for someone obviously more accomplished.
You forgot zero common sense and racist.
I don’t understand.
If Republicans lose big league in November, it will be Trump’s fault.
I think you meant to say “bigly”, not big league.
Either way you are correct, and November 3 will be an extinction level event for Trump and the GOP.
It will be because of Democratic cheating and lying. No.one in their right mind would vote for a Democrat except socialist Muslims. The Democrats won’t fix the economy as they never have and the Democrats have no no ideas on the economy other than Harris suggesting free college for everyone will fix the economy one of the most stupid ideas I have ever heard.
“It will be because of Democratic cheating and lying’
That would not be the entire reason for a Democrat win, if that should occur. The prolongation of the Iran war without a resolution favorable to the US (including an absolute, guaranteed end to Iran’s nuclear enrichment program as was touted by Trump as the most important justification for that action), should it persist much longer, along with the recent, inexplicable wholesale retreat of the Trump administration and the disappearance of RFK Jr. (bought off or intimidated?) on the mRNA vaccine issue could cause any number of erstwhile GOP voters to sit on their hands at home in November. I am pretty disgusted on both issues. That will likely not be enough to keep me from voting Republican, as the negative prospects for Democrat rule involve significantly worse scenarios, but it is enough to make me think twice about it, something I would not have done until very recently.
There are at least 31 top energy companies that trade as alternatives to fossil fuels. With Alito having recused himself because of investments in one or more fossil fuel companies, shouldn’t others with investments in alternative fuels do the same? What is known of the particular energy investments the other justices may hold? The same conflict likely exists for them as well. Does it not?
Do the same? Got absolute proof they have such investments. Answer: You most absolutely do not.
Your or my “proof” is not as relevant as what they know or should know of their particular investments and then act on their own initiatives accordingly. For example, Justice Kentanji-Brown receives dividends from the Black Rock Large Cap Core Class A mutual fund that holds ownership in Chevron Corp and Phillips 66. If Alto recused himself because of some ownership in an energy company not a party to the lawsuit, shouldn’t Kentajii-Brown do the same? We all can credit Alito for doing what he did not have to do. Unfortunately, the same cannot be said for a liberal on the bench.
So its not capitalism? Its hedgefundism? Corporations joined in hedge funds?
Hedge funds are but a feature of capitalists’ investments and not something separate from it or alternative to it. What is it you are trying to say? Don’t be so wholly unclear about what you spiel?
There are many kinds of capitalism. New language might be needed. The wealth managers magnify the power effect. It’s beyond corporatism.
It’s an interesting topic, economics. It’s incredible power and global. Global corporatism? Power
“Capitalism” considered as narrowly as you seem to be framing it doesn’t mean very much politically, or even financially. Unfortunately “free market capitalism”, which is what most poster seem to mean, has in effect not been practiced for a very long time.
Ah ha, Grima.
Also, what about investments in companies that supply or service the oil companies? Once you get into indirect impacts there is no end. Alito should not have recused himself.
I don’t think it should even be necessary to pass laws requiring anyone wanting to be a judge in the federal system to put their assets in a blind trust. In this case, it’s not just that Alito didn’t have stock or other financial interest in the energy company, but that the ruling could affect his interests in other energy companies in which he DOES have an interest. And, he’s not entitled to brownie points or praise for recusing himself, either–that is literally the least he can do ethically. That’s the cost of being a judge in the federal system–and, taxpayers should not have to “defray” the costs for fees for putting assets into a diversified mutual fund, either. Judges have it made–they don’t have to compete for clients, pay for any overhead, including office expenses, supplies, equipment, utilities, liability insurance, employee salaries, pensions, fringe benefits, all of which are provided to them. In the federal system, they get a lifetime annuity equal to the rate of pay for their last full year of service–GUARANTEED! They get generous insurance benefits too. Oh, and then there’s the fact that they get off for weekends, holidays, 30 “working days” (i.e., 6 weeks) of “annual leave”. For the SCOTUS, they get a summer break extending from late June to early October. They also have a bevy of law clerks to do their research. Where else could anyone get such a deal?
Alito is a class act after all.
So there is another recusal question that deserves scrutiny: Justice Elena Kagan wrote the foreword to the federal judiciary’s Reference Manual on Scientific Evidence, specifically pointing judges toward climate-science litigation and falsely describing the manual as a “dispassionate guide.”
The climate chapter was subsequently REMOVED by the Federal Judicial Center, and the National Academies admits questions about how it was produced warrant an independent review.
Under federal law, the test is whether a Justice’s impartiality “might reasonably be questioned.”
So what is Justice Kagan’s answer? Recusal, or hypocrisy?
#. He can’t be accused of fascism.
Republicans need to fight with all they have. Energy is imperative and with all options available. Watchdog legislation for air and water should be stringent including any ragged strip mining and serious problems created by fracking. It can be done.
Congress is a serious problem peopled with numbskulls. This suit has a real possibility of a split. Always follow the money. The money is in higher prices.
Anonymoose
I don’t think Alito should have recused himself. The legal advice was that he was not required to recuse himself under the rules. He had no interests in any of the parties. Worrying about other interests that might be affected indirectly by the decision is a can of worms; arguably, allowing these cases to proceed will increase costs across the economy and adversely affect nearly every justice, unless they are not in the market at all. Alito should have resisted whatever pressure was on him to recuse and done his duty and participate in the case.
According to Turley, Alito did/does have a financial interest in ‘energy companies’ that have a stake in this case.
According to Turley, ‘the controversy should prompt the Court to explore a longstanding problem for justices in holding financial interests that can conflict with their duties. The solution is simple: justices need to use blind trusts.’
*obviously, some trusts are more blind than others .. . I would limit SCOTUS investments to U.S. bonds/treasury notes just to be sure.
None of the companies in which he has an interest is a party to the case.
Daniel: Alito is not invested in the parties before the Court, but a ruling against the energy companies that ARE before the Court would affect his investments. That’s the issue.
“According to Turley, Alito did/does have a financial interest in ‘energy companies’ that have a stake in this case.”
Where does he claim that?
Rather than rial back and forth at each other, here’s the site where Justices investments and outside income are reported on an annual basis. https://www.scotusblog.com/financial-disclosures/