Supreme Court Justice Elena Kagan is facing calls for a Senate Judiciary Committee investigation after a coalition of conservative legal organizations accused her of failing to recuse herself from a major climate change case expected to be argued before the high court next term.
The coalition argues that Kagan compromised her impartiality by writing the foreword to the Reference Manual on Scientific Evidence, which included a climate science chapter that was later criticized by Congress and Republican attorneys general as biased and was eventually removed.
The coalition alleges that Kagan's comments in her foreword, in which she wrote that judges would increasingly confront lawsuits involving "climate science" and encouraged them to use the manual as a resource for evaluating scientific evidence, create the appearance that she had already embraced legal theories underlying the plaintiffs' claims.
The climate science chapter promoted scientific theories frequently relied upon by state and local governments suing oil and gas companies over climate change, according to the letter. After Republican lawmakers and a coalition of Republican attorneys general accused the chapter of presenting a one-sided view, the Federal Judicial Center removed it from the version of the manual distributed to federal judges.
The coalition argues that Kagan's implicit judicial endorsement of the manual and her support of climate-lawfare theories are evidence she cannot remain impartial on climate litigation, including the Court's upcoming Suncor case. They are asking her to recuse herself immediately.
The coalition also points to Kagan's history of inconsistent recusals, citing her participation in NFIB v. Sebelius, the landmark Affordable Care Act case, despite serving as solicitor general during the Obama administration while the law was being defended.
The letter argues that public confidence in the judiciary depends on justices stepping aside whenever their impartiality "might reasonably be questioned." The coalition is asking the Senate Judiciary Committee to hold hearings and investigate whether Kagan complied with federal ethics law and the Supreme Court's code of conduct.
The request mirrors the committee's most recent scrutiny of Supreme Court ethics, which involved investigating ethics concerns involving Justices Clarence Thomas and Samuel Alito about undisclosed luxury travel, gifts, and relationships with wealthy benefactors.
Kagan is scheduled to appear alongside Justice Amy Coney Barrett before the House Appropriations Committee on Tuesday to testify on the Supreme Court's proposed fiscal year 2027 budget, one of the rare occasions sitting Supreme Court justices publicly testify before Congress.
