Supreme Court Justice Elena Kagan is distancing herself from a climate science reference for judges that is making waves in an upcoming case.
Conservative groups have called for a probe of whether Kagan — a member of the high court’s liberal wing — violated ethics rules by not stepping back from a legal fight by local governments trying to get the oil industry to pay up for the impacts of climate change. The high-stakes legal battle has the potential to cost energy producers billions of dollars.
During a congressional hearing Tuesday on the Supreme Court’s budget, Senate Appropriations Chair Susan Collins (R-Maine) asked Kagan about the controversy.
It stems from the foreword the Kagan wrote to a judicial reference manual that contained a chapter on climate science. That chapter has since been withdrawn.
“I hadn’t read the chapter in question prior to that time. Actually, I still haven’t read it,” Kagan said.
The justice added that the purpose of the manual was not to take positions on “contested and contestable” issues and said the decision by Judge Robin Rosenberg, director of the Federal Judicial Center, to pull the climate chapter was made out of concern that some people would view the reference material as “slanted in a particular direction.”
Kagan noted that other Supreme Court justices have written forewords for other editions of the manual. Chief Justice John Roberts serves as the chair of the Federal Judicial Center.
“This is a book that’s existed for 30 years and has different editions and has assisted countless numbers of judges during that time, so I was glad to do that,” Kagan told lawmakers about her contribution.
“I think that Judge Rosenberg’s hope is that things will be learned from this experience and that we won’t — that the Federal Judicial Center won’t — ever find itself in this position again.”
Neither Kagan nor Collins addressed calls for the justice’s recusal from the upcoming climate case, Suncor v. Boulder, which will be argued and decided during the next term.
House and Senate lawmakers and Kagan — who appeared on Capitol Hill alongside Justice Amy Coney Barrett — generally avoided discussion of any specific cases during two separate hearings.
Sen. Sheldon Whitehouse, a Rhode Island Democrat and one of the recipients of the letter calling for Kagan’s recusal, took to social media Monday to rebuke the missive. He said the letter is an example of “fossil fuel dark money pressuring Supreme Court toward climate denial.”
Steve Milloy, who signed the letter, said Tuesday that he didn’t accept the explanation Kagan gave to Collins.
“I’m a lawyer, she’s a lawyer, and as a lawyer, you don’t get to sign and endorse things you don’t know anything about,” said Milloy, a former Trump transition adviser who disputes consensus climate science.
He said he didn’t know whether Roberts should step back from the climate case, given his role in the Federal Judicial Center, and noted that Kagan was the one who gave her blessing to the climate chapter.
In her foreword, Kagan wrote that “in the coming years, judges will confront lawsuits relating, for example, to artificial intelligence, climate science, and epidemiology.”
Justice Samuel Alito, who was appointed by a Republican president and holds stock in oil companies, has also faced calls to step back from the Suncor climate case.
A court spokesperson has said the justice is not required to recuse himself because he does not have financial interests in the companies directly named in the case. Alito has declined to participate in earlier versions of the climate case that have come before the Supreme Court.
Lesley Clark contributed to this report.
