What A Day - Is This Samuel Alito’s Swan Song?

Episode Date: October 5, 2026

The Supreme Court is back, and once again a lot is on the docket. Like climate change, and what cities and states are allowed to do about it. This major climate case also saw Justice Samuel Alito's recusal — which is uncommon. To discuss what lies ahead for the court and Alito, Jane speaks with Leah Litman, host of Strict Scrutiny.Show Notes: Check out Strict Scrutiny – https://www.youtube.com/@strictscrutinypodcast  Subscribe to the What A Day Newsletter – https://tinyurl.com/y4y2e9jy What A Day – YouTube – https://www.youtube.com/@whatadaypodcast Follow us on Instagram – https://www.instagram.com/crookedmedia/ For a transcript of this episode, please email [e-mail]

In the case of Sam Alito, you know, who are his billionaire BFFs? You know, who has he taken luxury private jet trips with? Or where does he own stock? And so there isn't and hasn't been a consistent policy on recusals. It's Monday, October 5th. I'm Jane Koston, and this is what a day. But like anything else, something like that gets out. It gets quickly spread.

So we're watching and monitoring it closely. I don't think it's cost for alarm, but it is cost for folks. That was Secretary of State Marco Rubio today responding to news that Russian authorities have quarantined a hospital and are monitoring contacts of an employee at a Plague Research Institute in Siberia who contracted pneumonia of a, quote, unknown cause. Local state TV said that the woman died. No, I do not like any news story involving the words Plague Research Institute either. Russian authorities said that they found no evidence that her illness was caused by any of the pathogens she worked with. But the cases raised alarm in Russia after unconfirmed media reports suggested she might have died of pneumatic plague,

a less common but severe form of plague that can spread from person to person. I didn't like any part of that. Soldiers and Gold Star families are pressing top army officials to explain how an Iranian drone strike on an American base in Kuwait earlier this year was able to kill six soldiers. One of the soldiers' widows told the Associated Press, quote, we have the right to know what really happened. If somebody messed up, those people need to be held responsible. Remember how Caroline Levitt left the White House to supposedly spend more time with her family? Well, she is.

It's just her right-wing television network family. She just landed a new gig at none other than Fox News. Levitt will serve as an on-air contributor beginning in November, according to the network. I am beginning to think that none of these people actually want to spend more time with their family. But I want to talk about the Supreme Court and climate change and what cities and states are allowed to do about it. Joining me is Leah Littman, host of crooked strict scrutiny, to talk about Justice Samuel Alito recusing himself from a major climate change case. Leah Littman, welcome back to what a day. Thanks for having me.

So today the Supreme Court heard arguments in Suncor Energy USA Inc. versus county commissioners of Boulder County, which is a very boring name for what's actually like a surprisingly complicated case. Can you tell me a little bit about it? Yeah, so this is a lawsuit that Boulder brought against several companies that pollute, right, that make greenhouse gases that they allege are contributing to climate change. And Boulder goes through in this lawsuit several different ways that climate change is negatively affecting them. You know, it's altering the snow, it's altering the availability of water, it's creating environmental hazards and so on. And so this is really modeled after like opioid litigation or tobacco litigation where entities sued corporations whose products were creating. pretty widespread and diffuse harms, trying to get them to internalize the cost of their product. And so this lawsuit is very much of a piece with that. And of course, the oil companies are arguing these suits cannot proceed. Federal law actually prohibits them. So something I was interested in because it feels like, on the one hand, this is a conservative

leading court. It should be pretty much a easy decision in favor of oil companies. But both Supreme Court Justice Neil Gorsuch remarked it was a little complicated. And then Elena Kagan also said it was complicated. So why is this case more complicated that it seems like it should be from me a layman's perspective? So it's complicated in part because the oil companies are in search of a legal theory to support the conclusion that they want the court to reach. They are arguing that this lawsuit is prohibited, but prohibited. by what? They're not totally sure. Sometimes it's the Constitution, but they're not really able to

identify, well, which part of the Constitution? Is it some hidden principle of equal sovereignty? Is it some hidden principle of really big problems can't have solutions, at least on the state level? Or, right, is it a matter of federal statute, right? Is it the Clean Air Act that actually prevents these lawsuits from going forward? And so I think part of their confusion was really just trying to identify what the oil companies' arguments were. more sympathetically, it's complicated because, like, climate change is a big deal. And so sorting out exactly, right, like how states, how localities get to regulate it is a complicated issue. And so some of the justices are concerned about the possibility of every municipality in the country,

you know, potentially initiating these lawsuits. Whereas other justices, you know, we're concerned about, well, are we just going to say states and localities truly can't do anything to address the harms from climate change, you know, that are really existential. threatening that. Something that was also interesting is that this case is about climate change, but it's not exactly just about climate change. Some of the supporting briefs in the case came from groups that don't really have anything to do with climate change, but they were concerned about whether or not state and local government could sue companies for doing bad things. So, for instance, the Brady Center to prevent gun violence filed a brief supporting Boulder, arguing that the Supreme

Court should not undermine, quote, the important role that state and local government suits have played in addressing the predictable harms of guns and gun violence. So how can this case impact the fight against gun violence or the fight basically for state and local governments to do stuff that the federal government has not yet done or might not do? Yeah. Well, so the oil company's argument is basically these states can't sue companies that are causing pollution and contributing to climate change because climate change is a widespread problem that affects everyone, you know, not just nationally, but also globally. And the harms that are, you know, going to Boulder, they come from everywhere in the United States. They are diffuse. And so if you map that argument

structure onto a bunch of other possible bad things, whether it is opioids, whether it is guns, whether it is tobacco, then if the court says, yeah, you're right, oil companies, states really can, sue entities that are engaged in harmful conduct, but that harmful conduct is happening everywhere all at once, and you can't necessarily say that their conduct in, let's say, Texas is what's causing the harms in Colorado. But that theory is so broad that it would call into question a bunch of other, you know, preventative litigation, harm reduction strategies that states and localities have tried in the past. And in part for that reason, some of the justices like Brett Kavanaugh, but also the oil

companies, attempted to create this theory that is just good for air and water pollution. Like he just kept saying, well, air and water pollution are different as if they would just make this rule only for climate change. We'll get back to my conversation with Leah Littman in just a moment. What a day is brought to you by Nutrifal. Fall feels like the perfect time for a reset. New routines, better habits, and a little more attention to the things you may have put off over the summer. If your hair could use a reset, there's Nutrafol.

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spelled N-U-T-R-A-F-O-L dot com promo code day 10. This episode is brought to you by the Make The Case podcast. Who has the right to wear a mask at a protest? How do we protect voting rights from attack? How do flock cameras invade our privacy? What does it mean to be suddenly stripped of your legal immigration status? And make the case a new podcast from the ACLU of Northern California, go behind the scenes with the people fighting for your civil liberties and civil rights. In each episode, host Carmen King sits down with attorneys and organizers and asks them to make the case for why their work matters. And what happens when they win or lose? Listen to make the case wherever you get your podcasts. Let's get back to my conversation with Leah Littman.

So there was one conservative justice who was not there today. Samuel Alito recused himself from this case because he reported owning stock in two oil companies. And I think more importantly, one in a luxury fishing trip with an investor in a company that's in the dispute. So his announcement that he was recusing himself didn't actually give a reason. But what's the history of recusals? Because it feels as if, especially with this court or even more recent iterations of the court, everyone has a conflict all the time. I seem to remember, I think, Elena Kagan recused herself relatively recently. What's the history here? So recusals are traditionally at the Supreme Court

done on a pretty case-by-case ad hoc basis. What happens is that every chamber just goes through all of the case documents trying to search for potential conflicts of interest with the justice, whether it's because the justice was a judge on the court of appeals when the court of appeals heard the case or in the case of Elena Kagan, maybe she was the Solicitor General when the federal government made a decision about the case, or in the case of Sam Alito, you know, who are his billionaire BFFs? You know, who has he taken luxury private jet trips with? Or where does he own stock? And so there isn't and hasn't been a consistent policy on recusals. And I think that that really contributed to what I described as a public outcry and a public push for a more formal policy, in part because

Justice Alito had participated in a case in which that hedge fund manager who gave him a free private jet trip had been directly involved. And so what the justices did is they adopted a non-binding ethics guidance document that indicated they would recuse and they would explain why they were recusing themselves. But of course, Sam Alito couldn't even bring himself to follow that and explain why he was recusing. He just finally recused. So theoretically, this case could end 4-4. What happens then? So what happens when the justices divide by an equally divided court is that that whatever decision, the lower court made, that decision stands. So here, that would be the decision of the Colorado state courts that said this lawsuit can proceed, at least this stage

of the case. So if the justices divide four to four, then this lawsuit will be allowed to continue to play out. And then what happens? So could there be future legal proceedings as a result of the rest of the lawsuit? Because it feels as if this is just the beginning of this case. And If it were allowed to proceed, I assume the oil companies would come up with something else. Yes, absolutely. So this case, if it is allowed to continue further, could go to trial. After a trial, you know, the oil companies could raise various defenses, arguments about why any verdict against them might be insufficient.

Even at the oral argument today, it came out that there were several defenses that the oil companies had made that were not yet on appeal to the United States Supreme Court. So whether it is this case involving Suncor or some other case in which, which state locality has sued a corporation alleging some harms related to climate change. Like this issue will be back at the U.S. Supreme Court at some point. So something else over the weekend with regard to Samuel Alito, who spent today, I don't know, on a yacht, perhaps, is that he considered retiring this term. And it's apparently maybe considering retiring next year. Now, I remember in 2016, because I was around, that Trump's list of potential judges for the Supreme Court from the Federalist Society was a big deal and something that was definitely wielded to get Republicans to support him.

But Trump has spent the last several months complaining bitterly about the judges he put on the Supreme Court because they don't always do what he wants because he has the exact understanding of how the Supreme Court works that everyone thinks he does. So if Alito does retire during Trump's hopeful lame duck period, do you think that Trump talking about having a new Supreme Court justice or Republicans talking about having a new Supreme Court justice is going to have the same power that it did in 2016, given that the Supreme Court doesn't work the way that Republicans seem to think it does? You know, it's really hard to say. And in some ways I interpreted Alito's comments to try to capitalize. on that I don't want to know, I don't know the right word, goodwill or power that the Supreme Court has had, at least traditionally, among right-leaning voters. I didn't know if this was some sort of signal, like, oh, it's really important for you to go,

vote for Republicans in the midterms, even if you might not be inclined to because I'm considering retiring. Now, I still think that right-winger's are and should be very, very happy with the Supreme Court, even if the court has not. given Donald Trump absolutely everything he wanted. I mean, they overruled Roe versus Wade. They ended affirmative action. They have hamstrung the power of administrative agencies. They have greenlit so many abusive immigration policies of the Trump administration from third country removals to roving immigration customs and enforcement patrols. So I still think

that the Supreme Court looms large for right-wing voters. But I do think there is now an open question about whether it looms not as large, but larger in the eyes of more progressive voters who might finally be clued in to the importance of the Supreme Court and voting in order to ensure that that court isn't captured for five more decades because Donald Trump appoints some men's rights activists who are in their 20s to replace Sam Alito. What are you looking for at the beginning of this Supreme Court term? Because obviously this case is just the beginning. We are now deep in Supreme Court time, which I thought I never get the break from the Supreme Court I ever think I'm going to. It's a, you know, the season runs longer than I think it should. So what are you looking for this term? Because this obviously isn't the only case that they're going to be considering. Yeah, I would say three things. One is definitely in the lead up to an immediate aftermath of the election. Like, We just don't know what sort of emergency applications will make their way to the court if, for example, something goes wrong in election administration.

And voters are arguing, no, you actually need to keep the polls open longer or continue counting ballots because of some delay or irregularity. And so one thing I'm definitely watching for is anything related to election matters that might make their way up to the Supreme Court eventually. Second is the continued use of the shadow docket by the Trump administration because that is how, you know, they have been able to. to succeed in pressing forward with many of their policies, including the third country removal matter, which the court technically put on its regular docket, but still allowed the Trump administration to continue with in the interim. And I think that that pathway is still going to be quite advantageous for the Trump administration and will kind of highlight the courts, you know, more partisan colors. And then third is what other cases are they going to add to their docket? Because right now,

they're not that scheduled for after January. And so we just don't know what other big cases they might put on their calendars. I mean, they already have semi-automatic rifles. They already have, you know, some sort of proof of citizenship requirement for voting. They already have, you know, the Trump administration's mandatory detention policy for immigration proceedings. And so that is already a huge term. And every term has been huge, at least for so long as we have been doing strict scrutiny. But I think just waiting to see exactly how huge or like huge in what ways this term could be is something that I feel like I'm constantly having to watch for. Yeah, I don't like it when the Supreme Court seems like they might be bored. They should always have something to do

and I should always know exactly what it is. Take up crocheting. I hear it's awesome. Yeah, really get into, I don't know, fantasy football. Leah Littman, thank you, as always, for joining me. Thanks for having me. That was my conversation with Leah Lippman, co-host of Crooked Media's strict scrutiny. Before we go, New York, join Crooked Ideas in Lower Manhattan for an immersive two-hour walking tour inspired by the excellent podcast, Empire City. Your guide is Assad Dandia, someone who didn't just study the New York Police Department's history. He lived it. Assad sued the NYPD and won. As a college student, Assad joined an ACLU-led lawsuit

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