Supreme Court Justice Samuel Alito warned Thursday that Congress holds the power to defund the nation’s highest court and bring its operations to a standstill, making a forceful case for an independent judiciary.
Speaking at the Federalist Society’s annual Antonin Scalia Memorial Dinner, Alito told a crowd of more than 1,000 conservative lawyers that the judiciary is the least powerful of the three branches of government and is “vulnerable” to both Congress and the executive.
“Congress can turn off the lights at the Supreme Court and stop everything from happening if they want to defund their activities,” Alito said. “And there are many, many, many other things that they can do, or at least try to do.”
“So, it is important to preserve the independence of the judiciary,” he added. “If that is eliminated, then the Constitution as adopted in 1789 will no longer be the same.”
The remarks came about a week after Democrats swept control of both the House and the Senate in the midterm elections. Alito did not mention the elections or the coming change in power during his speech. However, Democrats have previously floated using Congress’s power of the purse as leverage against the court’s conservative majority.
The Constitution does place some limits on how far lawmakers can go. Article III, Section 1 states that federal judges’ compensation “shall not be diminished during their Continuance in Office.” But Congress controls the judiciary’s broader budget through the annual appropriations process, including funding for operations and security, meaning lawmakers could squeeze the courts without ever touching a justice’s paycheck.
Alito also took aim at lower-court judges, criticizing what he described as “unjustified” orders that have blocked presidents’ policies in recent years.
“They are dedicated and they are skillful, but they’re not perfect and they make mistakes,” Alito said. “And in some instances, I think they have gone far astray in abuse of their powers.”
He used a military comparison to make the point that even the weakest branch can do real damage when it oversteps.
“If you think about a hand grenade, a 500-pound bomb and a nuclear weapon, the hand grenade is the least dangerous,” Alito said. “But that is not to say that it is not dangerous.”
Critics on the left noted that Alito did not address President Trump’s calls to impeach judges who have ruled against him.
Alito, 76, is the second-oldest justice on the high court. Appointed by President George W. Bush, he has served on the Supreme Court for 20 years and has pushed back on speculation that he plans to retire soon.
His warning sets the stage for a possible clash between the court’s conservative majority and the incoming Democratic Congress, which will soon control the purse strings that keep the judiciary running.
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