Fix the Court executive director Gabe Roth released this statement following news that Justice Alito is now recusing in Suncor v. Boulder Co.:

“This is a prime example of why Supreme Court justices should be required to explain their recusals. (Currently, only Justices Kagan and Jackson do.)

“Is Justice Alito stepping aside because his clerks belatedly found a connection between this case and the companies whose shares he owns? Or is this the rare instance where a justice believes that open questions about his impartiality demand recusal?

“The Court’s lack of transparency, not to mention its nonexistent rules governing the justices’ papers, means we may never know.”

Alito initially declined to recuse for two reasons: first, he owns no shares in the parties (i.e., Suncor and ExxonMobil). Second, the Supreme Court’s Office of Legal Counsel advised him that he didn’t need to recuse.

And yet, here’s what likely happened:

Justices and their staff start to home in on merits cases a week or two before oral argument. (Suncor is scheduled for Oct. 5.)

As Alito and his clerks were reading the briefs in the case, they observed that Suncor, Exxon and their amici were broadcasting the idea that a decision on the merits in favor of the energy companies would effectively end other lawsuits on the same topic (generally, energy companies’ liability for some of the effects of climate change) that included other energy companies as parties.

Those parties include ConocoPhillips and Phillips 66, whose shares Alito owns.

Since a ruling in the Suncor case would substantially impact other cases that Alito would normally step aside from, he decided it was prudent to step aside from Suncor, as well.