Supreme Court justices aren't expected to be scientists. That's not their line of work, and it's not a field in which they are expected to be proficient. They are, however, expected to look at evidence critically, without bias. And where bias or any conflict of interest exists, they are expected to recuse themselves from any cases involved. That's just good, ethical behavior.
Which brings us to Supreme Court Justice Elena Kagan, and a case that will be coming before the court, Suncor v. Boulder County Commissioners, which is, in a nutshell, a test of whether state and local governments can prevent fossil fuel companies from operating within their jurisdictions in the fuzzy name of climate change. The catch is this: Justice Kagan, in 2025, submitted a foreword to a publication of the National Academies of Science, Engineering and Medicine that appears to reveal her being invested in the anthropogenic climate change argument. Now several interested parties are calling on her to recuse herself from the case.
Advocates are calling on the U.S. Senate Monday to investigate conflicts of interest from U.S. Supreme Court Justice Elena Kagan. The advocates argued Kagan was biased in favor of climate science and should not participate in a consequential case that could determine the future of climate change policies.
Leaders from the Judicial Crisis Network, the Heritage Foundation, the National Republican Lawyers Foundation and others wrote a letter to lawmakers on the Senate Judiciary Committee about concern over Kagan’s support for climate change.
Justices on the high court are expected to hear Suncor v. Boulder County Commissioners, a case examining whether state and local governments can prevent fossil fuel companies from engaging in global emissions activities that contribute to climate change.
I won't go into the legal merits of the case, except to note that the claims Boulder County is making about anthropogenic climate change are the worst sort of buncombe; we've covered those claims before, and no doubt will again. But Boulder, a city known variously in Colorado as "The People's Republik of Boulder" and "Seven square miles surrounded by reality," is trying a new tack here, trying to leverage climate scoldery to actually force a legal shutdown of fossil-fuel companies and their operations.
That would represent a serious drag on the nation's economy, and Justice Kagan seems to have bought into the hype.
In Boulder County, officials attempted to institute nuisance laws to prevent energy companies like Suncor from emitting pollutants. Nuisance laws are typically used to deal with discrepancies between neighbors where an individual may be conducting business that harms another’s property interest.
In the letter, analysts point to Kagan’s authorship of a foreword in the Fourth Edition of the “Reference Manual on Scientific Evidence” published by the National Academies of Science, Engineering and Medicine in December 2025.
Why is that a problem? Because the manual mentioned is anything but reliable. One entire chapter touted "Attribution Theory" with regard to climate change, which relies on the use of computer modeling, not necessarily data, to extrapolate climate change trends.
The advocates said content in the chapter was inserted from individuals who advocate for legislation to restrict greenhouse gas emissions.
“The chapter was so biased that the Federal Judicial Center, which produced the Reference Manual with the National Academies, withdrew it from the version it publishes in response to complaints from multiple state attorneys general and Congress,” the advocates wrote.
The advocates argued that Kagan’s authorship as part of the manual is evidence she is unable to make an unbiased decision in Suncor v. Boulder County Commissioners. The Constitution requires justices on the Supreme Court to recuse themselves from consideration of cases in which “impartiality might reasonably be questioned.”
Support for a publication that was withdrawn due to obvious bias certainly presents the appearance of a like bias in anyone, Supreme Court Justice or otherwise, who was invested enough in said report to have written a foreword for it.
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This is just a personal opinion (and I'm not a Supreme Court Justice), but it seems to me that the Court will probably find for Suncor. This seems pretty much like the definition of a frivolous lawsuit, and it's a tad surprising it's gone this far. At least some of the arguments in this case will necessarily examine the factual claims of the issue, namely, climate change, and the facts just plain don't support the side taken by the Boulder County commissioners.
It's unclear at this point whether the Senate Judiciary Committee will look into it, and they cannot compel Justice Kagan to recuse herself, in any case.
The advocates called on the Senate Judiciary Committee to examine Kagan’s conflicts and hold hearings to determine whether she should remain a deciding voice in the case. Justices on the high court will likely hear arguments in the Colorado case in the fall.
That doesn't change the matter of factual analysis and bias.
A decision in this case should include arguments based on a scrupulous analysis of the facts surrounding the claims of climate change activists and the people who are countering their arguments. This requires a clear eye and a lack of bias. Justice Kagan's involvement with the foreword gives the appearance that she has already made up her mind and should probably recuse herself from the case Suncor v. Boulder County Commissioners — not because of her reliably left-of-center positions in other decisions, but because of her bias in this particular subject, as evidenced by her written support for a report making unsupportable claims about anthropogenic climate change.
