Alito says Supreme Court is caught between the president and a Congress that can ‘turn off the lights’

Supreme Court Justice Samuel Alito expressed concern about Congress’ potential use of the power of the purse against the high court in remarks at an event in Washington, D.C., Thursday night.

Speaking with conservative author Mollie Hemingway at a black-tie dinner for the annual Federalist Society’s National Lawyers Convention, Alito said the judiciary is the “least dangerous” branch of the government, and is “vulnerable to the executive and to Congress because they are more powerful.”

“Congress can turn off the lights of the Supreme Court and stop everything from happening if they will not fund their activities,” he 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.”

Alito did not directly refer to the recent midterm elections, but the conservative stalwart’s remarks came shortly after Democrats won control of both the House and the Senate in larger than expected numbers last week.

Despite the power dynamic, Alito said, that’s “not to say that the federal judiciary cannot be dangerous when it goes to strike.”

He referred to the court not as a “nuclear weapon” or a “500-pound bomb,” but a “hand grenade.”

“The hand grenade is the least dangerous, but that is not to say that is not dangerous,” Alito said.

While stressing the need for judicial independence in remarks to the audience of more than 2,500 conservative elected officials, lawyers, judges, and advocates, Alito also said he believes some federal judges have gone “far astray” in what he called recent “unjustified orders.”

That has helped lead, in part, to the rise of the controversial emergency docket over the past 10 or 15 years, said Alito, a nominee of George W. Bush. The Trump administration has had a very high success rate with the conservative majority on the so-called “shadow docket,” with interim rulings that have allowed the administration to move forward with immigration enforcement, the restructuring of the federal government and construction of a White House ballroom while underlying litigation is pending.

“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,” leading opponents to rush to court to try to block those orders, Alito said.

“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,” he said, and “in some instances,” judges have issued “very sweeping and unjustified orders, stopping what the president wants during during the pendency of appeal,” a process that can take years.

“So, if at the end of that period it turns out that the district judge was wrong, the president, whoever it is, will have been prevented for most of a four-year term from implementing this, this, this initiative,” he said.

The lower court judges, he said, “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.”