Justice Alito’s Warning

Associate Justice Samuel Alito’s declaration that Congress has the prerogative to “turn off the lights” at the Supreme Court is both black letter law and a blinking red warning. It is fitting that he made those remarks at the Antonin Scalia Memorial Dinner hosted by the Federalist Society, named for the sage whose ballast was constitutional bedrock. Justice Alito, the court’s oldest justice, offered 1,000 lawyers a lesson in the meaning of the parchment.Quoth Justice Alito: “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.” He added that 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.” The warning resonates in the wake of the Democrats’ midterm victories.The Constitution assigns to Congress the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” It also mandates that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Lawmakers, though, are told that the “compensation” received by the justices “shall not be diminished during their Continuance in Office.”The Framers saw that restriction as a bulwark against undue influence on the judiciary — a malignity they had seen firsthand. The Declaration indicts George III for having “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” Hamilton reflects in 79 Federalist that “a power over a man’s subsistence amounts to a power over his will.”The power to bring the Roberts Court to heel has long animated the left, a wish that grew more fervent after the overturning of Roe v. Wade in Dobbs v. Jackson Women’s Health — a decision written by Justice Alito — and the grant of presidential immunity in Trump v. United States. President Biden backed ending lifetime tenure and abolishing presidential immunity, though both those would require amending the constitution.Expanding the court, though, would require only a simple majority of both houses, which the Democrats will possess in the new year. The future speaker of the House, Hakeem Jeffries, backs a packed court. Congressman Jim Clyburn, one of the Democrats’ elder statesmen, has voiced support for a “baker’s dozen” Supreme Court — 13 justices. Vice President Harris is also supportive of adding justices to dilute the court’s conservative flavor. Democrats have not yet threatened to defund the court, though it is hardly difficult to imagine such a proposal mooted by the Democrats’ swollen hard left ranks. Justice Alito, though, is also teaching another constitutional lesson. In October the court’s oldest justice told Bloomberg News that “I intend to stick around through this term.” Meaning that the switch in Congress is not prompting thoughts of retirement. Justice Alito is joined in that steadfastness by the oldest justice, Clarence Thomas. These columns have written about the “duty to sit.” That’s the obligation, first formulated by Chief Justice Rehnquist, for a justice to hear a case if they are not absolutely disqualified from doing so. We dissented when Justice Alito recused himself after a liberal uproar. We are glad that he intends to sit, even in the dark — if the Democrats turn the lights out.

Justice Alito’s Warning

Justice Alito’s Warning

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