Justice Samuel Alito, speaking to the Federalist Society on Thursday, warned against any potential congressional action to defund the Supreme Court as he defended the importance of an independent judiciary.
“Congress can turn off the lights at the Supreme Court and stop everything from happening if they want to defund their activities. And there are many, many, many other things that they can do, or at least try to do,” Alito said.
“So, it is important to preserve the independence of the judiciary,” he added. “If that is eliminated, then the Constitution as adopted in 1789 will no longer be the same.”
Alito made the comments in his return to the Federalist Society’s annual Antonin Scalia Memorial Dinner, named after the late conservative justice and held as part of the group’s annual convention each November.
This year, the convention comes a week after Democrats swept control of both houses of Congress. Alito made no reference to the midterm elections or the pending change in power during his remarks, but Democrats have eyed using Congress’s power of the purse as leverage against the conservative-majority high court before.
Two of Alito’s colleagues — Justice Elena Kagan and Justice Amy Coney Barrett — made a rare visit to Capitol Hill over the summer to advocate for the judiciary’s budget and their increased security funding in the wake of rising threat levels.
Alito told the crowd of more than 1,000 conservative lawyers on Thursday that the judiciary is the least powerful branch and it is “vulnerable” to Congress and the executive. Still, the justice warned that judges can overstep.
“If you think about a hand grenade, a 500-pound bomb and a nuclear weapon,” he began, “the hand grenade is the last dangerous. But that is not to say that it is not dangerous.”
The justice chastised lower judges at one point for sometimes issuing “unjustified” orders blocking presidents’ policies in recent years.
“They are dedicated and they are skillful, but they’re not perfect and they make mistakes,” Alito said. “And in some instances, I think they have gone far astray in abuse of their powers.”
Alito was the latest conservative justice to address the Federalist Society’s annual dinner. Justices Brett Kavanaugh and Amy Coney Barrett shared the stage last year, and Justice Neil Gorsuch joined liberal Justice Stephen Breyer a year prior.
Alito addressed the dinner virtually during the pandemic in a speech where he described the health crisis as having caused “previously unimaginable” restrictions on civil liberties.
The Federalist Society does not officially take political or legal positions, but the nonprofit over decades has become an incubator for Republican judicial nominees and a tentpole of the conservative legal movement.
