Alito warns Congress could 'turn off the lights' at Supreme Court by cutting its budget

Supreme Court Justice Samuel Alito used a black-tie conservative dinner in Washington on Thursday night to deliver an unusually direct warning: Congress holds the power to grind the Supreme Court to a halt simply by refusing to fund it — and that threat, he argued, makes judicial independence something worth defending.

Congress can turn off the lights of the Supreme Court and stop everything from happening if they will not fund their activities. 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.— Justice Samuel Alito

Alito made the remarks at the Federalist Society's annual Antonin Scalia Memorial Dinner, speaking with conservative author Mollie Hemingway before an audience of more than 2,500 conservative elected officials, lawyers, judges, and advocates, according to NBC News. He did not reference the recent midterm elections directly, but his comments came days after Democrats won control of both the House and the Senate by larger-than-expected margins.

The warning rests on a real constitutional distinction. While Article III of the Constitution explicitly protects justices' salaries — stating their compensation 'shall not be diminished during their Continuance in Office' — the Court's broader operating budget, covering staff, security, and facilities, is subject to annual congressional appropriations, according to Fox News. That means Congress could not cut a justice's paycheck, but could, in theory, defund everything around them.

Alito framed the judiciary as structurally the weakest of the three branches. The judiciary, he said, is the 'least dangerous' branch of government and is 'vulnerable to the executive and to Congress because they are more powerful,' according to NBC News. But he was careful to note that 'least dangerous' does not mean harmless.

The hand grenade is the least dangerous, but that is not to say that is not dangerous.— Justice Samuel Alito

He had declined to describe the Court as a 'nuclear weapon' or a '500-pound bomb,' settling on the hand grenade comparison to capture the Court's capacity to act decisively while acknowledging its relative institutional fragility.

Alito also used the occasion to criticize what he called 'unjustified orders' from some lower-court federal judges, which he said have contributed to the rise of the emergency docket — sometimes called the 'shadow docket' — over the past ten to fifteen years, according to NBC News. He argued that presidents, frustrated by congressional gridlock, have increasingly acted unilaterally, prompting opponents to rush to court and seek judges in favorable districts.

The litigators, understandably, choose the districts where they think they are most likely to get the result they want. Their expectations are very often met.— Justice Samuel Alito

In some cases, he said, district judges have issued sweeping orders blocking presidential initiatives for the duration of an appeal — a process that can take years — only for those orders to later be found wrong. 'The president, whoever it is, will have been prevented for most of a four-year term from implementing this initiative,' Alito said, according to NBC News.

They are dedicated, and they are skillful, but they're not perfect, and they make mistakes. And in some instances, I think they have gone far astray in abuse of their powers.— Justice Samuel Alito

Alito closed his remarks on judicial independence with a constitutional warning: 'If that is eliminated, then the Constitution as adopted in 1789 will no longer be the same,' according to Fox News.

Alito, a nominee of President George W. Bush, has served on the Supreme Court since early 2006. The Trump administration has had a high success rate on the shadow docket, with interim rulings allowing it to proceed with immigration enforcement, federal restructuring, and construction of a White House ballroom while underlying litigation remains pending, according to NBC News. No congressional action against the Court's budget is reported to be imminent.

Why it matters — Alito's remarks highlight a rarely discussed constitutional pressure point: while justices' salaries are untouchable, the Court's day-to-day operations depend entirely on congressional funding, giving a newly empowered Congress a potential lever over the institution.

Reported by thehill.com, nbcnews.com, foxnews.com, al.com, nacionale.com