By Benjamin Teixeira, FTC law clerk

On Sept. 28, Justice Alito recused in Suncor v. Boulder even though neither he nor his wife owns shares in Suncor, a Canadian energy group, or Exxon Mobil, which is also a petitioner in the case. The general thinking was that the recusal occurred because Alito’s wife holds shares in other oil and gas companies that could be impacted by the result. 

The Clerk of the Supreme Court, Scott Harris, provided notably little detail when announcing Alito’s recusal from Suncor, failing to communicate a clear standard that could be applied going forward.

But a few days later, Alito himself gave some insight into his decision in a Wall Street Journal interview.

Alito said that many predicted if Suncor were to lose, it would lead to a wave of climate litigation that could drag down the oil and gas industry — and that a “reasonable person” might then doubt whether his financial interest in energy companies would not be substantially affected by the outcome of Suncor. 

Judicial disqualifications are governed by 28 U.S.C. §455 and Canon 3B of the SCOTUS Code of Conduct. The federal law requires a judge or justice to recuse if they have “a financial interest in the subject matter in controversy or in a party to the proceeding” or if they have “any other interest that could be substantially affected by the outcome of the proceeding.” Canon 3B largely follows the federal law but inserts precatory language (“may”) versus the law’s mandatory language (“shall”).

What’s the extent of “substantially affected”?

This leads us to another case argued during the October sitting.

On June 30, 2025, Alito recused in the Parker-Hannifin v. Johnson — a case initiated by employees alleging their investment managers were violating their duties under ERISA — on account of his wife holding Parker-Hannifin stock.

Then, on Jan. 16, 2026, Parker-Hannifin and Anderson v. Intel Corp. Investment Policy Committee — another case initiated by employees alleging their investment managers were violating their duties under ERISA — were both discussed at conference, with cert. being granted in Intel later that day.

There is reason to believe that the issues presented in both cases were transferred to Anderson to avoid them coming before an eight-member bench.

If this were true, then the outcome of Anderson could impact the outcome of Parker-Hannifin. (What’s more, when arguments in Intel were held, the Parker-Hannifin litigation was mentioned multiple times, and in the briefs, it was mentioned more than 70 times.) So it’s reasonable to question whether Alito has a “financial interest” in Parker-Hannifin that might be “substantially affected” by the outcome of Anderson.

At minimum, Alito owes the public an explanation of why this is not the case and why he’s not violating the standard he voluntarily laid out in Suncor.