Justice Elena Kagan should recuse herself from Suncor Energy v. Boulder County. Not because a lower court told her to. Not because an ethics board ruled against her. Because the oldest test in the profession says so: would a reasonable, informed observer question her impartiality? Here, the answer isn’t close.
I spend a good part of my career serving as an expert witness in securities and fiduciary litigation. Before I say a word to counsel, I clear conflicts, in writing, every time. Not because I’m worried about actual bias. Because the standard doesn’t ask whether I feel biased. It asks whether a reasonable person, looking at my history with the parties or the subject matter, would wonder. If the answer is yes, I will step aside. No hearing required. No committee vote. That’s the discipline the profession imposes on people far less consequential than a sitting justice of the Supreme Court.
Federal law imposes the identical standard on judges, Kagan included. Under 28 U.S.C. § 455(a), a justice must disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Courts have described this as a purely objective inquiry. It doesn’t turn on whether the judge actually harbors bias, only on how the situation looks from the outside.
Now look at what’s on the outside here. A coalition of conservative legal organizations, including the Judicial Crisis Network and the Heritage Foundation, sent a letter to the Senate Judiciary Committee arguing that Kagan compromised her impartiality by writing the foreword to a judges’ reference manual on scientific evidence. That manual included a climate science chapter that Congress and Republican attorneys general later criticized as tilted toward climate litigation plaintiffs. The chapter didn’t survive the criticism. The Federal Judicial Center, which produced the manual with the National Academies, pulled the chapter from its published version after complaints from multiple state attorneys general and members of Congress.
The case in question asks whether state and local governments can hold fossil fuel companies liable under nuisance law for their contribution to climate change. That’s not a tangential subject. It’s the exact terrain Kagan’s foreword addressed when she told judges to expect a wave of climate science litigation and pointed them toward the manual as a resource for handling it.
This isn’t a case where a justice once wrote a law review article on federalism and now hears a federalism case. This is a justice who put her name on the introduction to a manual built, in part, to shape how courts weigh climate evidence, and who is now sitting in judgment of a case asking courts to do exactly that. As one coalition leader put it in comments reported by 930 WFMD, Kagan’s implicit endorsement of the manual and her support for climate lawfare theories are themselves evidence that she can’t remain impartial on the Suncor case.
Kagan’s defenders will say a foreword is academic commentary, not advocacy for a party. Fair enough, in the abstract. But this foreword wasn’t abstract. It pointed judges toward a specific chapter that regulators and Congress later found so slanted it had to be withdrawn. A justice doesn’t get credit for neutrality on a document that failed the neutrality test.
THEY WENT AFTER TRUMP UNDER AN OBSCURE CLAUSE. WHAT ABOUT LAWMAKERS WITH ACTUAL TERRORIST TIES?
There’s a cost here that runs deeper than one case. The Court operates on public confidence that its members referee disputes rather than participate in them. Every time a justice keeps a case where the appearance of a thumb on the scale is this obvious, that confidence takes a hit, whether or not any formal rule was broken.
I don’t get to decide for myself whether my prior involvement in a matter is disqualifying. The standard decides for me, and I comply before the first phone call with counsel. Congress wrote the same rule for federal judges back in 1974, precisely because asking someone to assess their own bias doesn’t work. Kagan doesn’t answer to a state bar or a malpractice carrier. She answers to the same statute I do. She should follow it.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.