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

Supreme Court Justice Samuel Alito expressed concerns about Congress’ potential use of the power of the purse against the high court during a speech Thursday evening in Washington, DC.

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

“Congress can turn off the lights on the Supreme Court and stop this from happening if it doesn’t fund its activities,” he said. “And there are many, many, many other things they can do, or at least try to do. So it’s important to preserve the independence of the judiciary.”

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

Despite the power dynamic, Alito said, that “doesn’t mean the federal judiciary can’t be dangerous when it strikes.”

He called the court not a “nuclear weapon” or a “500-pound bomb” but a “hand grenade.”

“The hand grenade is the least dangerous, but that doesn’t mean it’s not dangerous,” Alito said.

While emphasizing the need for judicial independence in his remarks to an audience of more than 2,500 conservative elected officials, attorneys, judges and attorneys, Alito also said he believes some federal judges have “lost their way” in what he called recent “unwarranted orders.”

That has contributed, in part, to the rise in the controversial number of emergencies over the past 10 or 15 years, said Alito, George W. Bush’s nominee. The Trump administration has had a very high success rate with the conservative majority on the so-called “shadow package,” with interim decisions that have allowed the administration to move forward on immigration control, restructuring the federal government and building a White House ballroom while the underlying litigation is ongoing.

“Presidents became very frustrated that they couldn’t convince Congress to pass their legislative agenda, and so they looked for ways to do everything they could unilaterally with their own powers,” leading opponents to rush to court to try to block those orders, Alito said.

“Litigants, of course, choose districts where they think they have the best chance of getting the outcome they want. Their expectations are very often met,” he said, and “in some cases” judges have issued “very sweeping and unwarranted orders, stopping what the president wants during the pendency of the appeal,” a process that can take years.

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

Lower court judges, he said, “are dedicated and competent, but they’re not perfect and they make mistakes. And in some cases I think they’ve gone way off track.”