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Supreme Court Justice Samuel Alito warned on Thursday that Congress has the power to bring the nation's highest court to a halt by cutting off its funding, raising the alarm over judicial independence a week after Democrats won control of both chambers of Congress in the November 3 midterm elections.
Alito delivered the warning during remarks at the Federalist Society's annual Antonin Scalia Memorial Dinner in Washington, telling the crowd of more than 1,000 conservative lawyers that the judiciary is the weakest of the three branches of government and vulnerable to political retaliation through Congress's control of federal spending.
"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, 76, who has served on the court since 2006 after being nominated by President George W. Bush, also criticized lower-court judges who, in his words, have "gone far astray" by blocking presidential policies, saying some have issued unjustified orders in recent years.
He did not name a specific lawmaker or proposal in his remarks, and he did not directly mention the midterm results or the incoming Democratic majorities, according to accounts of the speech. Democrats are set to take control of the House and Senate in January, and some lawmakers have in recent years discussed imposing an enforceable ethics code on the justices, creating term limits and expanding the court from nine seats to 13.
Congress controls federal spending, including the funding for the judiciary, but Article III of the Constitution protects the justices' own pay, stating that their compensation "shall not be diminished during their Continuance in Office." That protection covers the justices themselves, not the appropriations that pay for the court's staff, operations and facilities.
Democrats have eyed Congress's power of the purse as leverage against the conservative-majority court before. In 2023, a group of Democratic senators proposed withholding $10 million in Supreme Court funding until the justices adopted stricter ethics requirements. Over the summer, Justices Elena Kagan and Amy Coney Barrett made a rare visit to Capitol Hill to advocate for increasing the judiciary's budget and security funding amid rising threat levels.
The court currently has a 6-3 conservative majority. Whether Democrats, once in the majority, would pursue any funding-related measures aimed at the court remains to be seen, and no such legislation has been announced.