from those who study this sort of thing and even this humor. it is not a very funny book but i hope it might be the funniest book about ebola you might read the. [laughter] >> host: anna harvey an

associate professor at new york university also of the author of the book "a mere machine" the supreme court, congress, and american democracy". professor harvey? >> guest: we're looking at to questions. the first is when does the supreme court decide constitutional cases talking about the constitutionality to do so independently as the elected branches. most people argue the answer the question yes. i can tell you that there's usually some combination of the following. the justices have salaries that are protected by the

constitution. and then is the consequence their independent of the elected branches in that is probably a good thing. thinking of the first part that is what most of the book is about the first two parts of the claim there is good behavior tenure that by the house and the senate under vaguely worded grounds but the second part that their salaries protected is also not true but to specifically lower the justices' salaries while they set of of bench because

of inflation there is no requirement that congress increase the justices salaries so in essence they fail to increase them. therefore that is what i set out to answer. so how with the new tests that rigorously? but how you measure things to deal with the fact we don't have randomizes controlled trials there is a lot of fact and to be as transparent as possible. i really suggesting of

leslie teach in high-school is probably wrong. so i want to be sure it you can check me and i am happy to tell you that it appears to evidence throughout the book. and after all of that that the court appears to be dramatically responsive with congress in particular. so when congress gets a little more conservative even in constitutional cases

you to let those preferences. and one time period you can see very clearly is the rehnquist court in 2003 or 2004. from the very beginning had a majority that was of a fairly conservative majority there is concern from liberals that this would the road many protections and held in place by the burger court. 1986 and '87 and '88 the

rehnquist court is not really taken on that presidents and by the end after it has upheld roe v wade with those policies that we were about they throw in the towel to say they thought it would be dangerous but it happens the very next term now in changes course. then it takes on gun-control striking a number of federal protections inca people would call it the rehnquist court.

so one of those in peril contributions is it did have been those of a congressional election in contract with america to find out exactly how much of the effect it had on the decision if we just use the cases on the court's docket every year the fact of the congress moving over from majority democrats to majority republican has increased 50 percentage points. so basically it takes a of court to have of low probability to maybe 65 or

70%. but to take into account to not get a random sample the draft of the selection bias but that is about seven percentage points. it is a very large effect. most of the book is about laying that out and the history of the court including the burger court to show that quantitative data and also what people sought and talked about how

we could see this response in action. for example, the rehnquist court is the conservative majority for the first seven years but the warren court is different course it has of democratic majority in congress if you have one that is working in tandem with the electorate -- the other branches. it to simulate what would've happened had there been more opposition in congress. but you think of the warren court as is very independent individual rights and what

the evidence is now suggesting the warren court could be the warren court's because at a supportive democratic congress but it could not issue many of those a bit was a different congress. think about that as working in tandem but much of the book lays out the evidence for the claim the supreme court is much more democratically accountable than we thought it was. the second question the book addresses it is that a good thing or a bad thing? with a more responsive chord verses independent? that is the more interesting and policy question what type of accord to do you want?

in addition to teaching our children see we also teach them that is a good thing the court is independent we would have a different united states about the independent federal court. the last part makes that claim to look across nationally with protections around the world and a variation to see that it is true. what is interesting about that but democracies is very much not the case that it

protects the rights and liberties actually the more independent the courts are common if you were protections of rights and liberties you have so we're arguably actually may prefer that we have fewer some think we should have more protection that we be better off with democratically accountable korea than we have had. however one of the findings that i was surprised by at the end of the book that i had not expected is if you prohibit your courts from exercising rule all together to make constitutional rulings on statutes to have a way around it for example, canada the charter allowed the legislature and the

federal legislature with the notwithstanding clauses. also to make some policy there is a clause that is essentially this model will be good notwithstanding any conflict that may arise with our rights and liberties and even if a court would find this is in conflict with the charter or constitution they cannot strike it but what continues to be good law notwithstanding. lipper having the court even the netherlands. so the courts are not allowed to exercise the

power of judicial review but in those countries summarize them liberties protection is the highest so those countries receive the highest levels. so that is where the book ends. maybe we have that backwards. because we have the independent courts but it is in fact, not that has led to the rights and liberties that we have to have their protections for the end of the constitution to limit the power. so that is a joint argument of the book. >> host: so professor those of have a negative effect of every measure of rights and protections why is that? >> guest: this is

interesting. we have believed for a long time that independent courts are a good thing while simultaneously believing it is not. it is an argument why we are better off under a more democratic government. with the democratically elected representatives are accountable or among other things for individual rights and liberties with greater protection from the government. if you look on surveys look for those protections. that is one of the reasons we find around the world more democratic governments is because legislators are pulled toward that majority preference. it is really not so

surprising if you have an institution that is not democratically accountable the pull that day deal with the voting rights act both were enacted by legislators responding to a widely felt preference at the time that now is the time to put this into law. so for a long time the supreme court allowed them to remain standing and and

in the house so by and large the maturities respond to the poll. but by and large over the long run the officials respond to the protections of liberty's. then we will see more protections. >> host: what about elected judges? >> it's such a bad rap. sometimes we wonder of that negative opinion if it is the hangover but from a the

get-go so my own belief from those who have studied judicial elections of preparing outcomes that they do a pretty good job. to see more protections of what we think is important. and more protections against

discrimination on the job. in much of that comes from the court cases. so those that respond what is the preference for protections in the workplace? so i think elected judges are a good thing. with another issue is not unrelated it is difficult. so i think that evidence is better off with the institutional reform that we could cover up with it would be positive.

in with a notwithstanding clauses were just to have regular elections. net is not unrelated to the discussion that is what made the judicial review in the united states so impact fall to have such an effect that when the court issued the ruling on the statute that they cannot be overcome by simple majorities so to overturn it you have to amend the constitution so it

gives the course to a power that judicial review is allowed and that is another way with your court to come back to say for example, it is by ordinary lot. to say this is unconstitutional the legislature says we don't agree. so in other words, the amendment process of the

constitution is yet another thing that gives the courts more power in you may want in the democratically accountable area. >> host: anna harvey, nine supreme court justices will see the title of this book "a mere machine" my guess is that all nine will say they don't worry what congress thinks of us? >> guest: i think they may say something else. florida congress to have the effect on us. that is of bad thing.

the justices are very fine to in that they should have been left alone. so we would all like to be left alone of that dictatorial issue but that is not the way the constitution is designed. and part of the book is historical when i go back to look at the writings. said john adams was not at the constitutional convention but his work was cited and well-respected and he said very simply the

judicial branch should have the check but the whole point of checks and balances there is no single body or institution that was unchecked by others to ensure that the justices could be removed it can happen and it has not very often but the salaries are elected by the democratically elected branch said to have an interest to secure their independence but i would say that is not have a constitution works there is a theory in the 1990's when

the speaker of the house representative tom delay went on a crusade about the supreme court's they had a conservative majority but not enough for those in congress so they would talk about impeachment and the fire power cutting the budgets and the justices' responded with outrage how dare you? and this is why it gives those powers so it is protected if we want to. because of that constitutional power. >> does this extend down to

the circuit courts i am thinking of a gay marriage cases that are moving around in the country today that seems to be coming to the supreme court is that your supposition? >> the way that article to is written it applies to the federal courts that that clause but it applies to all justices. and the superior courts as we called them the district and appellate courts actually have an additional

leverage used against them by the congress all other courts are established by statute they can also be disestablish by statute so the supreme court is ridden to the constitution their avenues the congress has to influence but it cannot simply eliminate the supreme court however all the federal courts have been established by federal statute issuing them with those cases i have to be

careful to say they pushiness of -- the same direction but not looking at the next project but think we have no reason to think that judges sitting on the appellate or trial courts have the disincentive to work on that. >> host: anna harvey on the gay marriage case the republican a majority currently in the house of representatives with a democratic senate and president gave marriage comes to the supreme court. >> guest: my answer to that is in probability because that is the world that i live in. one of the interesting things that i didn't mention before is the role of public

opinion so when i was thinking of you find it is responsive to congress that may be public opinion drives them both so in the case of gay marriage it is actually quite striking how quick public opinion has evolved over time definitely questioning any direction if you think it is responding to push in that direction however with the effects while controlling for public opinion but it does seem to respond to the constitution

so by best bets as long as there is a republican house and there are particular reasons why, odds are if i was in the betting market that it probably would not legalize same-sex marriage and it is worth pointing out the case that cannot of california in which a state court took that california band and rode into the constitution as a referendum and it comes up to the supreme court and it allows the state court decision tuesday and but on very narrow grounds so the court

basically said we will allow the state tuesday and which means in california that the yen is overturned but it is not affected the others around the country so was very narrow and if they were forced to confront the issue facing a congress that is how style to the idea i am guessing they would vote with congress. >> host: the house of representatives? >> i am glad you asked. >> with the incentives britain into the constitution it has an effect even if they don't realize. it gives the house special powers so in the case of

appropriations there is a cause in article was to call the origination costs that gives the power to originate any bill that appropriates money so we talk up the justice's salary the past to come from the house first said even if you have a supportive senate you cannot do anything and tell the house news. so one might suspect the jesses -- justices may be differential to the house that is rather many originates. the justices cannot be impeached and jellicoe's to the house with full power of impeachment that rarely happens but talking about politics that they tried to

avoid that bad outcome if the house has control it seems it would give them some extra incentive somewhat in the year just responding to that house. >> host: what is the message behind the cover design of your book "a mere machine"? >> guest: it is a very simple cover i think i just wanted a very simple cover it is a funny story. i actually wanted on the cover the title of the book is inspired by a quotation from thomas jefferson from

1776 with the character of the law will give its but the judge me a mere machine. and in the context of the letter he was right teeing it was no legislator and he basically said if you want flaws better merciful or just or fair look to your legislature but for those institutions that induce mercy don't let the judge did involved design them so they don't have very much discretion. so i thought "a mere machine" people would not have that quotation in the

back of the mine so i wanted to put that on the front of the book kind of looking like thomas jefferson and doors to the book but the idea is that "a mere machine" is what we should be thinking about to design these institutions where we stream our courts to have the power for those legislators. >> host: anna harvey professor of politics at the york university author of "a mere machine" the supreme court, congress, and american democracy". thank you.