books on book. >> anna harvey sat down with us to talk about "a mere machine: the supreme court, congress, and american democracy" in which she looks at the influence of the supreme court on the judicial branch. >> host: anna harvey is here with us and she is the author of "a mere machine: the supreme court, congress, and american democracy." professor harvey, what does your book mean? >> guest: i would say it is about two questions. the first is when the supreme court decides constitutional

cases and makes rulings on the federal statutes does it do so independent of the elected legislature and most people i think would argue is the answer to yes. i teach politics at nyu and i can tell you every text book i have seen says some combination of the following: the justice have live tenure and salaries that are protected and as a consequence they decide cases independently of the elected branches and furthermore that is probably a good thing. thinking about the first part of that, claiming the courts decide, most of the book is about examining that and seeing

if anything is true. the first two parts are definitely not true. they don't have life tenure. you can look at the constitution. they have good behavior tenure meaning they can be removed from the house and senate; they can be impeached under vaguely worded grounds. the claim they have salaries that are protected isn't true. congress can't exclusively lower the salaries while on the bench but if they erode there is no requirement to be increased. so the congress can lower the salary simply by failing to increase. and the third claim is therefore they decide cases independently and i sought ought to see if

that is really true. there is a lot of nitty-gritty about testing that and figure out that is true. there is a lot of ways to measure things and deal with the fact we don't have nice, randomized controlled clients. so there is a lot of that. and my approach in the book was to try to be as transparent as possible. so, you know, i am really suggesting that a lot of what we teach in, you know, our introduction class, and a lot of what we teach in high school is probably wrong. so i therefore wanted to be sure to have as much as of the details there in the book so that you could check me. i am happy to tell you the book

is saying here is the evidence, laying it out and here is what i did, and here is how you can p replicate this. and after that the court appeared dramatically responsive to the elected branches, congress in particular. so when preferences in congress change, when it gets more liberal or conservative, you can see the cases following the congressional preference. and one time period where it is seen very clearly was during 1986-2004 during the ren quest court. and what is nice about them is

you had a court that was majority appointed by republican presidents so conservative majority on the court. throughout the 1980's there was a lot of concern from liberals in the country that this was a court that was going to erode many of the protections that were established by the warren court and held in place by the burger court. this was a court liberals were worried about. 1986, 1987, and 1988 past and the court isn't taking on the liberal precedent and after the court upheld roe v wade and peserved a number of policies liberals were worried about observers of the court through

in the towel saying we thought this was going to be dangerous but it didn't turn out that way. and from 1994 the court breaks the gun control and american's with disability act and striking a number of federal protections that had been enacted by democratic congresss and people started calling the ren quest court in two parts. the first and second. no one knew what happened. one of the contributions of the book is to say something happened. there was a big abort and congressional election and a huge turnover in the house. and we can estimate how much an affect that congressional turnover had on the course of decisions controlling for a bunch of other things and if we

just use the casus that the court hears, just the sample of cases on the court's docket every year, and the fact congress changed over from majority democratic to republican is an increase in 50 percentage points that the courts would write a conservative statue. it takes the courts from having a low probability of strikeoing liberal statute to mostly likely. if we take into account the court selectively choses it's

murdo documents and we address selection bias and we estimate larger affects at about 70 percentage points. so it is a large effect. most of the book is about playing that out and walking through the history of the court including the warren court, burger and renquest court and soing with the quantitative data what people saw and talked about and how we can see this response in action. the ren quest court was when the conservative majority pulled punches for its first seven years/terms and then seems to let the free range to the justice preferences.

the warren court is different. there is not an obvious constraint but we can signal what would have happened with a more conservative congress. we think of the warren court being this independent guarantor of individual rights during that period and what the evidence is suggesting is the warren court was able to be the warren court because they had a supportive democratic congress and the warren court would not have been able to issue many of those rulings had it faced a different congress. so they worked in tandem with

the friendly congress. much of the book is lays out the evidence for the claim that the supreme court is more democratic and responsive than maybe we thought. the second thing is was this a good thing or bad thing? having a more responsive court as opposed to an independent court. that is the most interesting and policy questions, i think. what kind of a court do you want? in addition to teaching our children and our students that the court is independent we generally teach them that is a good thing if the court is independent. but you know, we would have fewer rights and liberties in the united states if we did not have our independent federal court. the last part of the book investigates that claims and

looks across nationally at data on rights and liberty protections around the world. we have variations in how independent statistics are. we can look at that and see if is true. there is a different stery for democracy and non-democracy. in democracy, countries like us, it isn't the case that independent courts provide better protections for rights and liberty. in fact, the more independent your courts are, the fews -- fewer -- protections you have. you may prefer we don't but if you prefer more protection for civil rights then we are better off with the democratically

accountable court we have. however, one finding i was surprised by even, at the end of the book i had not expected this going in, and that is if you prohibit your court from exercising judicial review and don't allow the courts to overturn statues or you have a way around it -- for example in canada, the canadian charter allows the preventional legislatures and the federal legislature to enact what are called not withstanding clauses. they enact a bill protecting something or making a policy and into the bill they insert a clause that says essentially this law will continue to be good law and not withstanding any conflict that may arise with

our rights and liberties. even if the court found the bill was in conflict with their constitution/charter they can not strike it. the law continues to be a good law. they have essentially prohibited the court from striking a statue at unconstitutional. and this is happening in the netherlands as well. so there are examples of countries where the courts can't exercise this right and in those countries civil rights is the highest. so countries without judicial review have the highest civil rights. so maybe we have it backwards. we think it is because of the independent court, but the court isn't independent and maybe it

is the fact that it isn't independent that has led to the rights and liberties we have and we could have even more with protections of eliminating this all together. >> host: professor harvey, you write the independent courts have a negative way on the measures of rights protections, why do you think that is? >> guest: i think it stems from, it is interesting, we have believed for a long time that independent courts are a good thing while believing democracy is a good thing. we have lots of arguments why we are better off under democratic governments. we thing represent veativrepres

accountable for poplar preferences and greater protection for individual rights and liberties. greater protection from the government. this is something you have look in surveys most people like this protection. we think one of the reasons we found around the world that more democratic governments have more rights and liberty protection is because legislatures are being pulled toward the majority preference. so it is maybe not so surprising that if you have an institution under the constitution that is not democratically accountable it will work against the pull that legislaturers are working toward. voting rights act of 1964 for example was enacted by

legislatures responding to a widely felt preference that now is the time we need to have this written into law. for a long time the supreme court protected and allowed to remain standing those statutes while we had democratic majority in the house and on and off in the senate. when we have faced republican majorities particularly in the house we have seen the court be less protective of the voting rights act. so by and large the elected judges respond to that court, by and large, and elected officials respond to people's preference for greater protection and rights and liberties.

if you have court that is bound to respond to legislatures you will see more protection. >> host: what do you think about elected or termed limits of judges? >> guest: sometimes i wonder rather the negative opinion many have of electing judges is a hangover of this believe, perhaps mistaken belief, that independent judges are better than non-independent judges. we are taught independent courts are good thing from the get-go so when we see judges being elected in the states and localities we think how can that be good? they need to be independent. and my own belief and i think there is evidence from this from

among people who studies elections from across the state comparing outcomes in the states where they elect judges and don't. and elected judges do a pretty good job. we again, see more protections for some of the things we think are important. one piece of evidence people found is there are more protections for workplace rights. so protections against discrimination on the job in the states that have elected judges than in the states that have no elected judges. much of that comes through a court case. and the argument that people made is the studies are responding to what is the fairly widely felt preference for protection and individual rights in the work place. i think that elected judges are a good thing.

>> host: supreme court as well? >> guest: that is another issue. and this is actually not unrelated. it is of course difficult to amend the constitution. so i think that the evidence suggests that yes, we would be better off, any kind of constitutional reform we could come up that made our federal judges and justice even more accountable would be positive. and whether that would mean something like following the canadian example of not allowing with standing clauses or the dutchs without tradition review eror follows the states and having elections. but the constitution is difficult to amend. and the reason i understand it

isn't unrelated to this discussion is because part of what makes judicial review in the united states so impactful and having such an affect is that when the court issues a ruling on the constitutionality of a federal statute they cannot be overcome by simple majorities in the legislatureive branches. if you have not overcome it or get around it you have to amend the constitution. and that requires several super majorities so it gives the court a power that in some countries the judicial review is allowed and judges are not elected but the constitution can be amended with simple majority. so that is another way of kind of reining in your courts. if the court issues a constitutional ruling the legislature can come back in and

israel is a good example of this. their basic constitution can be amendeded by ordinary law in the legislature. and there have been instances where the israeli supreme court said we think this is unconstitutional and the legislature came back saying we disagree and we get to simply pass another law saying we disagree and the legislature wins. so in other words the amendment process of the constitution is anothered -- another -- thing that makes to difficult.

>> host: the justices will see this book and they might say i don't care what the judicial courts think of us. >> guest: it is bad and wrong policy for the congress to think it can't have any affect on us. sometimes members of congress do think they can have an affect on us and that is a bad thing and that should be nipped in the bud wherever possible. speaking of the justices now, the justice are very fond of writing and saying they should be left alone to do their jobs. as one can -- we will see why they would. we would all like to be left alone to have the power to pictorially issue whatever

rulings we want but that is not the way the constitution is designed. part of the book is historical and i go back and look at the writing of the drafters of the constitution and those who played a role in signing it. john adams wrote thoughts on government in 1776 which was influential. his work was sighted by many at the constitution and we was well-respected. he said simply just as judicial branch issues a check on the legislative they should the other branches as well. there whole point of checks and balances was to ensure no single body or institution was unchecked by others. our constitution does actually check the supreme court by en

ensuring the justice are removed and also their salaries are set by the legislative branch. i realize the justice have an interest in bringing their independence in but that is not the way the constitution works. there was a period i guess in the late 1990s/early 2000 when the speaker of the house went on a crusade about the supreme court. we had a conservative majority but it wasn't conservative enough for the republicans serving in congress. there was talk about impeachment. there was talk about using the

salary power. talk about cutting the budget for clerk. and the justice responded with out pl outrage and how dare you. and i remember thinking this is why the constitution gives to the branches in power is so our elected officials can check the court if they want to. so they dared because they are given that constitutional power. >> host: does this extend down to the circuit courts? i am thinking about the may gay marriage cases moving around coming to the supreme court. does your statement support this? >> guest: the way article 3 is written is that it applies to all of the federal court in the sense that the federal judges

have the same tenure and compensation clause of article 3 saying they cannot demodemons - deminish salary applies to all of the judges. the inferior federal court, district and appellate courts, have an additional lever that the can be use against them which is that all federal courts south of the supreme court are established by statute. and what can be established pie a statue can be existed.

and there are many avenues congress can to do influence the judges but they cannot eliminate is one thing. and all of the federal courts are established by a statue and can be disestablished. so that is another weight pushing the federal judges toward congressional favor. and their decision can be used by the supreme court of the justice's response. i want to be a little careful -- i want to say the incentives are all pushing in the same direction but the book focuses on supreme court cased and i am not looking at the next project which is appellate court cases. i think we have no reason to think that judges sitting on the appellate or trial courts experience any different incentives but we would want to do more work on that.

>> host: let's look and suppose on the gay marriage case. republican majority in the house of representative, democratic president and senate. gay marriage comes to the supreme court. >> guest: my answer to that is in terms of probability, right? because that is the world i live in. and one of the interesting things about the evidence sthat i didn't mention -- that -- is the role of public opinion. one of the things that i was thinking as i was doing the work was maybe, say you find the supreme court is responsive to congress. maybe all that is happening is public opinion is driving them both. so in the case of gay marriage, for example, we know that it is actually quite striking how quickly public opinion on the subject of same-sex marriage has

evolved over time. and that is pushing in the direction of if you think that the court is replying to public opinion, pushing in the direction for the court to legalize same-sex marriage. if you look at the affects of the congress on the court while control forking public opinion, it does want seem to have independent affect. the court seems to respond to the incentives to the constitution. so, union, me best bet is that the if you have a republican house, and there are particular reasons why the court seems to respond to the house in particular, and odds are, if i was playing a betting martha coakley i would bet that the court world war ii respond republican preference and not legalize same-sex marriage. it is worth pointing out the

case that came out of california in which a state court had struck the california ban on same-sex marriage that was written into the constitution to be a refrendem. it comes up to the supreme court and they low -- allow it to stand and the court said we are allowing the california state court's state department's decision to stand see so in california the ban is overturned but it doesn't affect the man other bans around the country. if they were forced to confront the issue and facing a congress that is hostile to the idea of

realizing same-sex marriage i believe it would be decided by congress. >> host: what is it about the house of representatives? >> guest: glad you asked. this is another thing about how the constitution is written and even if people don't realize it it is having an affect on their decision. the constitution as i am sure you know gives the house the special powers. so in the case of money builds for example, there is a clause and article 1 we call the origin cause that allows them to originate the budget or whatnot it has to come from the house first. the senate can't do anything

until the house moves. so one might suggest that the justices might be differential to the how because that is where stuff originates. and justices can't be impeached unless it goes to the house. they have the soul power of impeachment. and when we think people are seeking to avoid the bad outcomes so the fact that power is sitting there and the house has control seems like it would give the justice an extra incentive. and today we see it is the house the justice is responding to. if you want to may the game, look at the houses and see where justice are responding.

>> host: anna harvey, whatever the message behind the cover of "a mere machine: the supreme court, congress, and american democracy"? >> guest: the cover is simple. i think i just wanted a simple cover. here is a funny story actually. i actually wanted on the cover, the title of the book is inspired by a quote from thomas jefferson who wrote in 1776 let mercy be the character of the lawgiver but let the judge be a mere machine. and when he wrote that in the context of the letter what he meant by law giver was the legislature. he is saying basically if you want laws that are just or fair look to your legislature.

right? desi design legislative institutions that induce mersey in your law giver but don't let the judge get involved. design your institution so they don't have much discretion to overturn what the legislature said. and i thought that people would probably not have the jefferson quote in the back of their mind so i wanted to put the quote on the front of the book. and the press thought it might look like thomas jefferson had endorsed the book so they would not put the quote on. but the idea is a mere machine is what we should be thinking about. we should be designing institutions where we restrain courts f