Supreme Court Justice Samuel Alito acknowledged Thursday night that Congress has the power to effectively shut down the nation’s highest court, a week after Democrats swept the midterm elections.
“Congress can turn off the lights at the Supreme Court and stop everything from happening if they want to defund their activities,” Alito told the Federalist Society, according to The Hill. “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,” Alito added. “If that is eliminated, then the Constitution as adopted in 1789 will no longer be the same.”
Alito spoke at the Federalist Society’s annual Antonin Scalia Memorial Dinner, named for the late conservative justice. He addressed a crowd of more than 1,000 conservative lawyers.
He never mentioned the midterm elections or the coming shift in power, but the timing was hard to miss after Democrats won control of the House and Senate, and they have previously floated using Congress’ power of the purse as leverage against the court’s conservative majority.
Alito described the judiciary as the least powerful branch of government and said it is “vulnerable” to both Congress and the executive. In the same speech, he conceded that judges themselves can overstep.
“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.”
He also criticized lower-court judges for sometimes issuing what he called “unjustified” orders blocking 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.”
The court’s budget has been a growing concern for the justices. Over the summer, Justices Elena Kagan and Amy Coney Barrett made a rare visit to Capitol Hill to advocate for judicial funding and more money for security as threats against judges rise.
Alito is the latest conservative justice to headline the Federalist Society dinner. Justices Brett Kavanaugh and Barrett shared the stage last year, and Justice Neil Gorsuch appeared alongside retired liberal Justice Stephen Breyer the year before.
During the pandemic, Alito addressed the dinner virtually. In that speech he said the health crisis had caused “previously unimaginable” restrictions on civil liberties.
The Federalist Society does not officially take political or legal positions. Over the decades, though, it has become an incubator for Republican judicial nominees and a pillar of the conservative legal movement.