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Op-Ed | The American Prospect | April 20, 2023

Exxon’s Unethical Supreme Court Play

ClimateCongressional OversightCorporate CrackdownEthics in Government
Exxon’s Unethical Supreme Court Play

Oil company lawyers are pushing Justice Alito to indirectly decide cases he should recuse himself from.

This article was originally published in The American Prospect. Read it on the original site.

As the revelations of Supreme Court Justice Clarence Thomas’s flagrant corruption continue to unspool, scrutiny of the weak ethics rules binding the Court has intensified. The Senate Judiciary Committee is supposed to oversee the Court, but it has proven itself not remotely up to the task of rooting out judicial corruption. And amid this disturbing situation, a Supreme Court conference this Friday provides an opening for Court conservatives to try to game their few ethical limits in plain sight.

Each year, the Supreme Court receives petitions to review thousands of cases. The justices decide which hundred or so cases they will hear during that year’s term in routine conferences held on Wednesdays and Fridays. They sit down at a long table in a private room to confer, each justice first deciding whether or not they have to recuse themself from a case because of conflicts of interest. Four of the nine justices have to agree to hear a case for a petition to be accepted.

In a conference this Friday, the Supreme Court will consider a petition from oil companies ExxonMobil and Suncor Energy to review the Tenth Circuit Court of Appeals’ decision in Suncor v. Boulder, a case brought by two Colorado counties and the city of Boulder against the oil majors. The Tenth Circuit determined that the case should proceed in state court, where it was filed, and where the companies fear they may be on the hook for billions in penalties.

This case is one of dozens of related cases brought by cities, counties, and states across the country against fossil fuel corporations. The cases allege state law tort claims as well as corporate negligence, fraud, and consumer protection violations, pointing to the companies’ decades-long efforts to deceive the public about the dangers of fossil fuels, and they seek monetary damages for how climate change is wreaking havoc on their communities.

Most of these cases involve claims against several of the big oil companies, including BP, Chevron, ConocoPhillips, ExxonMobil, Shell, and TotalEnergies. Since 2021, six of the nation’s 13 circuit courts have unanimously held that cases brought by Baltimore, Boulder, Hoboken, Honolulu and Maui, several California counties, Delaware, Minnesota, and Rhode Island all belong and should proceed in state court.

The oil companies have petitioned the Supreme Court to review five of those circuit court decisions in favor of Boulder, Baltimore, the Hawaii and California municipalities, and Rhode Island. But from an ethics standpoint, conflicts abound. Justice Samuel Alito owns individual stock in ConocoPhillips and Phillips 66, both named in several of these suits. Justice Amy Coney Barrett also has connections to Big Oil: Her father was a corporate lawyer for Shell for 29 years. As a lower-court judge, she had previously recused herself from cases involving Shell for that reason.

One might expect this to pose a problem for the oil majors hoping the Supreme Court will save them from state-level climate cases. The Supreme Court previously took up Baltimore’s case on narrow procedural grounds back in 2021, but they returned it to the Fourth Circuit for further review. Alito recused himself from that case. Barrett should have as well, as Shell is one of the companies Baltimore is suing, but she didn’t. And since the Court doesn’t have an official ethics policy, there isn’t a way to force her to do so. Yet the conflict of interest is still apparent.

But this is why the oil industry hopes that the Court takes up the Boulder case first and foremost. While most of the lawsuits were brought against a dozen or so different fossil fuel companies, the Colorado municipalities are only suing ExxonMobil and Suncor Energy—the stocks of which Alito does not own. This presents an opportunity to get around Alito’s likely recusal from considering the other four petitions to which ConocoPhillips and Phillips 66 are parties. ExxonMobil—the only company involved in all five petitions before the Supreme Court, and represented in each by the same Paul, Weiss, Rifkind, Wharton & Garrison LLP lawyers—has been explicit that this is their strategy.

In a brief filed before the Court, ExxonMobil and Suncor’s lawyers argued that the Boulder case is “an ideal vehicle for resolving the questions presented and is uniquely positioned among the climate-change cases currently headed to the Court.” What makes this case such an ideal vehicle for resolving all the cases’ claims? “[I]t involves a smaller set of defendants than those cases and is thus less likely to present recusal issues.”

What’s more, when the oil companies filed their subsequent petitions for SCOTUS review in the Baltimore, Hawaii, California, and Rhode Island cases, they suggested that the Court’s decision in Suncor v. Boulder should determine how the rest of the cases proceed. “If the Court grants review in Suncor,” the fossil fuel company lawyers argued in their Baltimore v. BP petition, “the petition here should be held pending a decision on the merits there and then disposed of as is appropriate.”

In other words, among the dozens of what ExxonMobil and Suncor’s lawyers consider to be “materially identical climate-change cases,” the oil companies believe that the Boulder case provides an “ideal vehicle” for getting around overt conflicts of interest.

All these cases are explicitly linked. They involve many of the same parties represented by the exact same lawyers; they bring many of the same claims, and involve many of the same legal strategies on both sides. This is why a blanket recusal on Alito’s part is the only ethical option. Strategically employing a deceptively narrow view of what constitutes a conflict of interest in order to use one case as a vehicle to decide dozens of others is plainly unethical, however ExxonMobil wants to spin it.

Without Alito’s vote, it would be somewhat more challenging to get four of the eight remaining justices to agree to hear the oil companies’ petitions—and harder still if Barrett could be counted on to recuse herself. Getting four votes to take up any of these cases would not be impossible, of course. But given the unanimous agreement of six appeals courts and the federal government that these cases belong in state court, it would be somewhat unusual and conspicuous for the Supreme Court to still decide to take them on.

We will likely know soon what decision Alito makes. Still, we shouldn’t write off Barrett’s ethics violations here either; it matters that as she moved into a higher, less accountable position at the Supreme Court, she stopped avoiding the appearance of conflicts of interest.

Supreme Court justices are technically bound by a federal statute which holds that justices should recuse themselves from any proceeding in which their impartiality “might reasonably be questioned,” including when they have “a financial interest in the subject matter in controversy or in a party to the proceeding,” as Alito clearly does. Barrett’s case is less clear-cut, but legal experts have said that Barrett’s father could have been called for deposition in the 2021 Baltimore case for his past legal work for Shell, which is among the law’s given reasons for a justice to recuse herself.

Unfortunately, though a lower-court judge’s refusal to recuse themself can be appealed to a higher court, there is no public recourse to hold Supreme Court justices accountable for failures to recuse.

If we had a healthier, more transparent and accountable ethics regime for the Supreme Court, none of this would be possible. For a start, top public officials, from the Supreme Court to Congress, should not be allowed to hold stocks in individual companies. The Supreme Court should be bound to a strict code of ethics, and justices removed from their position if they are discovered to be in willful violation of the laws they are empowered to interpret. Supreme Court justices should not hold lifetime appointments; term limits are supported by 2 in 3 Americans, and would go a long way to depoliticize the Court. The current status quo—great power, no accountability—is a recipe for tyranny.

As we wait to see whether the justices take Exxon’s bait, the fact that local governments’ ability to hold fossil fuel companies accountable for violating state laws hinges in part upon the whims of the men and women with direct interests and connections to those same companies is immensely disquieting. It’s almost like today’s Supreme Court doesn’t serve anyone but the justices themselves.

IMAGE: “A protester holding a sign about the climate change denial of ExxonMobil at the protest Our Generation, Our Choice in Washington, D.C.” by Johnny Silvercloud is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.

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