When Justice Samuel Alito took the stage at the Federalist Society's annual dinner on Thursday, he delivered a chilling reminder that Congress has the power to defund the Supreme Court and that the country's founding design depends on protecting judicial independence.
Alito spoke at the Antonin Scalia Memorial Dinner, a fixture of the Federalist Society's convention every November, before a crowd of more than 1,000 conservative lawyers. The group takes no official political or legal positions, but for decades it has served as the training ground for the lawyers who go on to become Republican judicial nominees.
"Congress can turn off the lights at the Supreme Court and stop everything from happening if they want to defund their activities," Alito said. "And there are many, many, many other things that they can do, or at least try to do."
He continued, "So, it is important to preserve the independence of the judiciary. If that is eliminated, then the Constitution as adopted in 1789 will no longer be the same."
Why does this matter? Because Democrats won both houses of Congress just one week before Alito spoke. He never mentioned the midterms, but he didn't have to. Democrats have already floated using the power of the purse as a weapon against the court's conservative majority.
Alito described the judiciary as the weakest of the three branches of government and said it remains “vulnerable” to both Congress and the Executive. A branch which has no army and which controls no budget is only able to survive so long as the other two branches respect its role, and the Left has shown little inclination to respect a court which it can't control.
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Turning to the courts themselves, Alito acknowledged that judges can overstep. "If you think about a hand grenade, a 500-pound bomb, and a nuclear weapon, the hand grenade is the least dangerous," he said. "But that is not to say that it is not dangerous."
Alito also took aim at lower-court judges who, in recent years, have issued what he called "unjustified" orders blocking presidential policies.
"They are dedicated and they are skillful, but they're not perfect, and they make mistakes," he said. "And in some instances, I think they have gone far astray in abuse of their powers."
That said, it's unfortunate that Alito isn't doing what he could to ensure a conservative, originalist majority remains on the court. He's 75, the second-oldest justice on the bench, and President George W. Bush appointed him in 2006.
Earlier this year, Alito said he wasn't retiring, a decision that kept one of the court's most reliably conservative, originalist justices in place while leaving his seat dependent on Republicans holding the Senate. The midterms didn't change his calculus. He told Fox News after the election that he isn't stepping down and plans to serve at least through the end of the current term in late June.
He absolutely has the right to make that call. The problem is, of course, that the Republicans will soon no longer have control of the confirmation process, and any vacancy over the next two years would give the Senate Democrats the power to block a nominee or to demand a nominee who in no way shares Alito’s views. He understands the threat they present, and he still won’t help preserve the conservative majority.
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