Justices press both sides as Boulder’s climate suit against Exxon and Suncor opens the term

The case is Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, No. 25-170. Kannon K. Shanmugam argued for the companies. Kevin K. Russell argued for Boulder. Sarah M. Harris, principal deputy solicitor general, argued for the United States as a friend of the court supporting the companies. That answers a question left open in Monday’s edition: the federal government sided with the oil companies.

Argument started at 10:06 a.m. The transcript says the case was submitted at 11:53 p.m. That closing line is a misprint of the hour. The next case began at 11:55 a.m.

Shanmugam opened with this: “This case involves an unprecedented effort to use state law to regulate global conduct.”

Justice Sonia Sotomayor said she wanted to go back to jurisdiction and did not want to leave it. She asked whether Colorado’s appeal route means the Supreme Court cannot take the case at all. Justice Ketanji Brown Jackson asked why the Court should not wait until the state courts finish. Sotomayor also said the companies’ argument about reaching conduct outside the state showed up only on reply, and asked, “Haven’t you forfeited?”

On Boulder’s side of the pressure, Kavanaugh quoted the Court’s 2011 American Electric Power ruling, which said federal judges lack the scientific, economic, and technological resources of an expert agency. He asked whether that applies to a six-person state jury in Boulder. He said that if enough of these suits are filed, they could bankrupt the defendants. Roberts asked about cities filing copycat suits. Justice Amy Coney Barrett asked whether anything would stop Colorado from passing a law that purported to cap emissions in the other 49 states.

On the companies’ side, Kagan compared the suit to the tobacco cases of the 1990s and the later opioid cases. “This is chapter 3,” she said. “So, if this is chapter 3, were chapters 1 and 2 also preempted?” Roberts noted that courts routinely let states hear cases about conduct with broad effects outside the state, such as mass torts and the internet.

Justice Alito’s name is nowhere in the Boulder transcript. The eight who spoke were Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson. Monday’s story reported the Sept. 28 docket letter: Alito will not continue to participate in No. 25-170. The letter gave no reason.

Johnson v. United States Congress, No. 25-735, began at 11:55 a.m. and was submitted at 1:02 p.m. Jeffrey W. Chen argued for veteran Floyd Johnson. Kevin J. Barber, an assistant to the solicitor general, argued for the government. The law at the center of the pay cap is 38 U.S.C. § 5313

Kagan said there is a pretty clear argument that section 511 sends even constitutional questions to the VA secretary first. Sotomayor said Congress is very clear when it wants agencies to handle constitutional issues. Justice Neil Gorsuch asked why the Court needed to go down that rabbit hole, and said 511 is about district-court review. Alito, who sat for this case, tested a hypothetical law that cut benefits for veterans who criticize the military.

Questions are not votes. Anderson v. Intel is argued at 10 a.m. today, after this edition locks.