Justice Samuel Alito warned that Congress could use its control of the budget to shut down the Supreme Court, in remarks about judicial independence at a conservative legal gathering in Washington this week. Speaking at the Federalist Society’s annual dinner on Thursday night, Alito said Congress has the power to cut off the court’s funding entirely, and he argued that the judiciary’s independence depends on lawmakers choosing not to use that power. His comments came a week after Democrats swept control of both houses of Congress, and they touched on the court’s growing use of emergency rulings in cases involving the Trump administration.
What Alito said
Alito was speaking with the conservative author Mollie Hemingway at the Federalist Society’s annual Antonin Scalia Memorial Dinner, a black-tie event in Washington. In the conversation, he turned to the power of the purse — Congress’s control over government spending — and what it could mean for the courts. “Congress can turn off the lights at the Supreme Court and stop everything from happening if they want to,” he said. “So, it is important to preserve the independence of the judiciary.”
Alito described the judiciary as the least dangerous branch of government, comparing it to a hand grenade rather than a 500-pound bomb or a nuclear weapon. “The hand grenade is the least dangerous, but that is not to say that is not dangerous,” he said. The comparison, he suggested, is a reason to protect the courts from political pressure rather than a reason to dismiss them.
Why he raised it now
Alito did not directly refer to the recent midterm elections, but his remarks came a week after Democrats won control of both houses of Congress in larger than expected numbers. Before the election, Alito had raised the idea of using Congress’s power of the purse as leverage against the court’s conservative majority, and his return to the subject suggested that the question of court funding is very much on his mind as a new Congress takes shape.
The issue of the judiciary’s budget is not new. Over the summer, Justices Elena Kagan and Amy Coney Barrett made a rare visit to Capitol Hill to advocate for increasing the judiciary’s budget and for more funding for security for judges. Alito’s warning adds a different note: that the same power of the purse can also be used as a threat.
The emergency docket
Much of Alito’s talk was devoted to the court’s emergency docket, the fast-moving set of interim rulings sometimes called the “shadow docket.” Over the past decade, the court has increasingly used emergency orders to let the administration move ahead with policies — including immigration enforcement, a restructuring of the federal government and construction of a White House ballroom — while the underlying lawsuits are still being fought.
Alito said presidents have grown frustrated because Congress often will not pass the legislation they want, and he said litigators now choose the courts where they think they are most likely to win. He also chastised lower court judges for sometimes issuing orders that block administration actions, calling some of those orders “unjustified.” At the same time, he said lower court judges “are dedicated and they are skillful, but they’re not perfect and they make mistakes.”
What we know
Here is what is confirmed. Justice Samuel Alito, speaking at the Federalist Society’s annual dinner on Thursday, warned that Congress could cut off the Supreme Court’s funding and stop it from operating. He said preserving the independence of the judiciary matters precisely because that power exists. He also defended the court’s use of emergency rulings, said presidents are frustrated by Congress’s inaction, and said lower court judges sometimes issue unjustified orders blocking administration actions. His remarks came a week after Democrats swept both houses of Congress.
What happens next
Alito did not announce any action, and no member of Congress has proposed cutting the court’s funding. The question now is how the new Congress approaches the judiciary’s budget, and whether the court’s emergency rulings continue to draw the kind of attention Alito’s remarks have drawn. The court’s next decisions — and the way it handles the emergency cases still before it — will show whether the debate over its power and its funding grows louder or fades.
Sources
Sources: NBC News and The Hill. Featured image: The United States Supreme Court building in Washington, D.C. Photo by Phung Touch, Pexels License, via Pexels.