Alito warns Congress could 'turn off the lights' of the Supreme Court

Justice Samuel Alito, speaking Thursday night in Washington with conservative author Mollie Hemingway, said the judiciary is the “least dangerous” branch and is “vulnerable to the executive and to Congress because they are more powerful.” His starkest line: “Congress can turn off the lights of the Supreme Court and stop everything from happening if they will not fund their activities.” There are “many, many, many other things” lawmakers can do, or at least try to do, he added, which makes it “important to preserve the independence of the judiciary.”

The setting was a black-tie dinner at the Federalist Society’s annual National Lawyers Convention, with more than 2,500 conservative elected officials, lawyers, judges and advocates in the room. The remarks landed shortly after Democrats won control of both the House and the Senate in larger-than-expected numbers in last week’s midterm elections. Alito, a George W. Bush nominee, did not mention the elections directly.

Alito pushed back on any suggestion the courts can’t do damage. He described the court not as a “nuclear weapon” or a “500-pound bomb” but as a “hand grenade.” “The hand grenade is the least dangerous, but that is not to say that is not dangerous,” he said.

He also aimed at the lower courts, saying some federal judges have gone “far astray” in what he called recent “unjustified orders” — a problem he tied to the rise of the emergency “shadow docket” over the past 10 or 15 years. The Trump administration has run up a high success rate with the court’s conservative majority there, winning interim rulings that let it move ahead on immigration enforcement, restructuring the federal government and building a White House ballroom while the underlying litigation drags on.

The pattern, Alito argued, starts with presidents who can’t move their agendas through Congress. “Presidents have become very frustrated with their inability to get Congress to enact their legislative agenda, and so they have looked for ways to do as much as they can unilaterally with their own powers,” he said, sending opponents rushing to court. Litigators “choose the districts where they think they are most likely to get the result they want,” he said, and “their expectations are very often met” — producing “very sweeping and unjustified orders” that can freeze a president’s initiative for most of a four-year term if the district judge turns out to be wrong. Of those judges, he said: “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.”