cs and bs on the basketball team, was trying really hard not to get arrested. and he got into a fight with a kid who called his mom a crack whore in the schoolyard and push his face in the snow. that became an aggravated assault charge by the school. so he spent his entire senior year sitting in adult county jail awaiting trial for this ag assault charge from a schoolyard fight. and then almost all the charges were dismissed, and he came home that summer, tried to re-enroll again as a senior and was told now you're 19, you're too old, sorry. so he became a high school dropout, and then he couldn't pay the $225 in court fees that came due after the case ended, so then he had a warrant out for his arrest.

so i think in addition to the pleas, there's all these other things going on with the court system, like how long people are spending without a conviction, and then the court fees are just crippling -- we could just agree to get rid of court fees as a reason to go back to prison or go back to jail. >> i would agree. the public defenders have no interest, they have such an enormous caseload, they want to move through the cases as quickly as they can, and the judges frankly don't want these things going to trial because they don't have enough room on the docket if all these things went to trial. so if you can't afford an attorney -- lavar was lucky. he got into trouble after his older brother had become an nfl star, and so there was a high-powered attorney hired. there was quick resolution. there was downgrading and there

was still a plea deal. but mostly because the facts of the case there was no dispute. what i find interesting is that texas is now the national leader in prison reform. >> incredible. >> the reason why is because the conservative republican legislature doesn't want to spend money on prisons anymore so they're using exactly the same arguments for reducing prisons -- reducing incarceration rates as bleeding heart liberals were using the mid-'70s. it's word for word exactly the same reasoning, but the motive is because the budget is out of control, and they need to get it under control. >> there's a number of motives from the right. partly you have states and cities being out of money, but you also have evangelicals who

believe in redemption. you have the libertarians who think this is government overreach. this is the idea of parse moan any, that imprisonment is a last resort that incarcerating someone is a form of -- is an awesome form of state power that should only be used extremely rarely. and we're seeing this amazing coalition from the right and left, and i think there's a e enormous amount of leadership from the right on criminal justice reform and, frankly, for the liberals, it's a little embarrassing. it's like, where have we been? >> i cover the texas legislature so i can only speak to texas. i can't speak to anyplace else except to say those are a lot of the same reason prison reformers were using in the '70s, and it's -- it is embarrassing because liberals were trying to catch up with the tough on crime, and then as soon as --

>> of '94. >> then as soon as they get tough on crime, the right turns on them and goes in the exact opposite direction. there's another question. >> hopefully this will be a nice -- i think we're almost up to the 5:00-point. but i was struck by tomlinson hill as an historical documentation of top-down government policy created in the interests of those with money and power. publish how can telling these stories promote modern policy of public service and democracy with the focus on civic responsibility rather than a system creating advantages, device civil by class and race? that's a question for everybody. >> since you mentioned tomlinson hill i'll start. you know, this is dark stuff. and it's -- and it's stuff that

is hard to accept. it's hard to accept that that really nice looking old couple in that seep -- sepia photo in 1920, they were lynching people. that's what i had to face up to. so, that way it's very dark. but when you think about how far we have come and what our potential is, we have raised the least racist generation in history. when all the studies in -- in our history, in roared recorded history, what we have statistics for, the studies to back up. and that's something we need to be proud of. now, if we can take this generation, the millenial generation and younger, and then give them a little understanding how we got here, then i think we

might have a magic combination to solve the problems that continue to divide our society. but it's one thing to not be racist. and it's one thing to know the history. but those two things together is what we need. to have a new generation of leaders who will bring about change. and that's kind of what i'm pushing for. i don't think the younger generation is being taught, when the state board of education in texas talks about changing the slave trade to the triangle trade because they're embarrassed by the word "slave" you know we're not teaching our kid right, even if they're not racist. so that's what i think is the answer. >> well, i guess i take some heart from the activists who led the way aniston.

one person was david baker who was a leader in a group called community against pollution, and there's an intergenerational element to this story. his parents were the first african-americans to arrive to aid the freedom riders' bus on mother's day 1961 when the because was fire-bombed. he went off to new york and became a labor organizer and came back to aniston and got a job at monsanto, working on the cleanup. the didn't know how hazardous what he was working with. the chemical he was involved in cleaning up until after he started the job. and he took that knowledge and became active and eventually the leader of the group-community against pollution, that was so instrumental in helping to bring -- hold monsanto to account, and he said at one

point to me, he said, it was a magnificent struggle but we are not at the end. >> unfortunately we are out of time. i want to thank everyone for attending the session and asking such great questions and thanging the panel for participating here. the authors will be signing upstairs. the books can be purchased at the sales area. benefits the festival so we can bring all these great authors to the festival. i want to thank everyone for coming out today on such a rainy day and supporting the festival, and hopefully we'll have great day tomorrow, and come back again. [applause]

[inaudible conversations] [inaudible conversations]

>> new york university's anna harvey sat down to talk about her book: "a mere machine." in which she looks at the influence by the u.s. house of representatives on the judicial branch. it's about 35 minutes. >> host: an najar have i is an

associate professor of politics at new york university, also the author of this book: "a mere machine: the supreme court, congress, and american democracy." professor harvey, what is your thesis? >> guest: well, i guess i would say the book is really more about two questions. the first question is, when the supreme court decides constitutional cases, it's making rulings on the constitutionality of a federal statute, does it do so independently of the elective branches? and most people i think would argue that the answer to that question is, yes. so one of the things i do is teach -- i teach politics at nyu, and pretty much every textbook i have ever seen says some combination of the following: the justices have life tenure, they have salaries that are protected by the constitution. they can't be diminished, and as a consequence they decide cases

independently of the elected branches, and furthermore, that's probably good thing. so, just thinking about the first kind of part of that, the claim that the court decides cases independently, that's what most of the book is about, examining that and saying, well, is any of that true? and the first two parts -- the justices don't have life tenure. you can look at the constitution. we have something called good behavior tenure, which means they can be removed by the house and the senate. we know that. they can be impeached. under very vaguely worded grounds. the second part of it, the claim that the justices have salaries that are protected, is also not true. congress can't explicitly lower the justice's salaries while they're sitting on the bench, but if salaries erode because of

inflation, there's no requirement that the congress increase the justices' salaries to keep pace with inflation. so in essence, the congress can lower the justices' salary simply by failing to increase them. and the third claim, therefore they decide case tuesday independently. that's kind of what i set out to answer, to figure out. is that really true? and there's a lot of nitty-gritty about collecting -- how would you test that rigorousfully how do you figure out whether that's true? and there's a lot of choices to make about how you're going to measure things and how you're going to deal with the fact that we don't have nice, randomized controlled trials, we dealing with social science, we have data we observe in the world. so there's a lot of that. my approach the book was to be as transparent as possible. so i'm really suggesting that a lot of what we teach in our

introductory american politics classes is a lot of what we teach in high school, a lot of what we think is the case is probably wrong, so i wanted to be sure to have as much of the details kind of there in the book so that you can check me. i'm happy to tell you that the court is not independent, but the purpose of the book is to say, hearings -- here's the evidence. here's what i did. here's how you can replicate this. and after all of that, the kind of surprising thing is that the court actually appears to be fairly dramatically responsive to the preferences of the elected branch, of the congress in particular. so, meaning that when preferences in congress change, when congress gets more liberal or conservative, you can see the court's decisions, even in constitutional cases, you can see them following congressional

preferences. and one time period where it's real -- you can see it clearly is during the rhenquist court from 1986 to 2003. what is nice about the rhenquist court, you have a court from the very beginning had a majority on the court appoint by republican presidents. so fairly conservative majority on the court. and throughout the 1980s, 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 for civil rights rights and libs established by the warrant court and held in place by the burger court. this is a court liberals were worried about. and 1986, 1987, 1988 passed and nothing -- the rhenquist court was not really taking on the

liberal precedents, and by the end of really 1993, after the court has upheld roe v. wade, and upheld race and redistricting, preserved a number of the policies that liberals were worried about, observers of the court throw in the towel and say, we thought this this would be a dangerous conservative court. didn't turn out that way. and it happened the very next term is the term when all of a sudden the court changes course, and this the rhenquist court from 1994 on, the court that begins breaking gun control and the americans with disability act and striking a number of federal protections that had been enacted by democratic congresses and people started calling the rhenquist court -- the first rhenquist court, and it was the second rhenquist court, and nobody really knew what happened. and so one of the empirical

contributions of the book is to say, something did happen. there was a big important congressional eflex 1994 and the -- election in 1994 and there was a huge turnover in the house. and we can estimate how much an affect the congressional turnover had on the courts decisions, controlling a butch of -- a bunch of other things, and if we just use the cases that the court hears, just using the sample of cases on the court's docket every year, the effect of the congress changing over, between 1993 and 1994, from majority democratic to majority republican, is an increase of about 50 percentage points in the likelihood that the court would strike a liberal statute. so a fairly large effect. basically takes the court from having a fairly low probability that it would strike a liberal statute, around 15 to 20%, to

having 65% to 75%, which takes you from being most likely to uphold to mostly likely to strike them. so it's a big effect. if we do something slightly more sophisticated and take into account the fact that the court kind of selectively chooses its docket so we're not getting a random example of cases to look at in each term so we kind of address what we call selection bias in the court's document. we estimate even larger affects. becomes about 70 percentage points. so it's a very large effect. so, most of the book is bat kind of laying that out and walking through the history of the court, including the warren court, burger court, rhenquist court, and showing the quantitative dat and what people saw and talked about as the justices were deciding cases, how we can see this

responsiveness in action. so, for example, the rhenquist court is a time when there's a conservative majority that basically pulled its punches for its first seven years, its first seven terms, and then seems to let the -- give free ryne to the justice's preferences. the warren court is a court that largely has a friendly democratic majority in congress throughout most of its career. you have a court that is really working in tandem with the elected branches. not an obvious constraint. but we can simulate what would have happened had there been a more oppositional congress,, a much more conservative congress, and also simulation suggests that we tend to think of the warren court as having been this very independent, guarantor of individual rights during that period, and what the evidence is now suggesting about that period

is that the warren court was able to be the warren court because it had a supportive democratic congress. the warren court would not have been able to issued many of those rules had it faced a different congress. and so we need to think about that court as having worked in tandem with a friendly congress. so much of the book is kind of laying out the evidence for the claim that the supreme court is in fact much more democratically accountable and responsive than maybe we thought it was previously. the second question the book addresses is, was that good thing or bad thing? having a more responsive court as opposed to a more independent court. that's really, i think, the more interesting and important policy question. what kind of accurate do you -- what kind of court do you want? in addition to teaching our

children and students that the court is independent, we generally also teach them that is a good thing, that the court is independent. but we would have fewer rights s and liberties into the united states today itself we did not have our independent federal courts. and so the last part of the book kind of investigates that claim. and looks cross-nationally at -- we have data on rights and liberties protections around the world, and we have variation in how independent courts. so we can actually estimate that. we can look too see whether it's true. and what is interesting about that is that there's a different story for democracies and nondemocracies in democracies, countries like us, it's not the case that independent courts provide greater protections for rights and liberties. in fact it's the opposite.

the more independent your courts are the fewer protections and rights and lisch liberty -- liberties we have. so i you've care about race and -- you may prefer we have fewer, but if you think that we should have more protections for civil rights and liberties, we're arguably better off with the democratically accountable court that we have. however, one are one of the findings even i was surprised by, at the end of the book -- i had not expected this going in -- is that if you prohibit your courts from exercising judicial review altogether, so you simply don't allow courts to make constitutional rulings on statutes, overturn them, or you have some way around it. for example in canada, the canadian charter allows both the

"provincial legislatures and the federal legislature to enact what are called notwithstanding clauses. shy enact a bill protecting something, or making some policy, and into the bill they insert a clause that says, essentially, this law will continue to be good law, notwithstanding any conflict that may arise with our charter of rights and liberties. so, even if a court were to find that the bill is in conflict with their constitution, their charter, they can't strike it. the law continues to be good law, notwithstanding the conflict. they've essentially prohibited the court from striking a statute as being unconstitutional. and many other courts in the netherlands prohibits courts -- so there's all sorts of examples of countries where courts are not allowed to exercise its power of judicial review, and it turns out in those countries,

civil rights and liberties protections are the highest. so it is in the countries that prohibit judicial review where we see he highest level of rights and liberties. so that's where the book ends. maybe we have it all backwards. we think we have higher rights and liberties because we have an independent court, but our court is not in fact independent, maybe it's the fact that it's not independent that has led to the rights and lischs that -- and liberties that we have, and we could have even more rights and liberties protections were we to amend the constitution to eliminate the power of judicial review altogether. so that's really the, i n would say, the joint argument of the book. >> host: professor harvey you write in the most democratic countries-independent courts actually have a negative affect on rights, on every measure of rights protections. why do you think that is? >> guest: well, you know, i think it stems from -- it's kind of interesting.

we have believed for a long time that independent courts are a good thing. well, simultaneously believing a democracy is a good thing. so we have lots of arguments why we are better off under more democratic government. so, we think that democratically elected representatives are accountable to popular preferences for, among other things, greater protections for individual rights and liberties. right? greater protection from the government for our individual rights. something that if you look in surveys, most people like protections, rights protections, and we think one of the reasons why we found -- we find around the world that more democratic governments have more rights and liberties protections is because legislators are being polled for that preference, that majority preference. and so it's maybe not so surprising that if you have an

institution under your constitution that is not democratically accountable, that's going to work against the poll that legislators are feel -- the pull that legislators are feeling towards more civil rights protections. so the civil rights act of 1964. the voting rights act of 1965, those were enacted by elected legislators responding to a wildly felt -- widely felt preference that we needed to have these written into law. and for a long time, the supreme court protected, allowed to remain standing, those statutes while we had for a long time democratic majority in the house and on and off in the senate. when we have faced republican majorities the house, we have soon the court be less

protective of things like the voting rights act of 1965. so, the argument is that by and large elected majorities respond to that pull, and if you have a court -- not always but by and large on average, over the long run, elected officials respond to people's preferences for greater protections for rights and liberties. if you have a court that is kind of bound to respond to legislators, then you'll see more protections. >> host: what due you think about elected judges? >> guest: well,. >> host: or term-limited. >> guest: i think elected judges get such a bad rap. i think we -- again, i wonder -- sometimes i wonder whether sometimes the negative opinion that many have of electing judges is kind of the hangover of this belief, perhaps mistaken belief that we have, that independent judges are better

than nonindependent judges. so, we're all taught that independent courts are a good thing from the get-go, and so when we see judges being elected, in the states and in many localities well-think, how can that be good? they need to be independent from -- and so my own belief -- i think there's actually some evidence for this among people who study judicial elections across the states, sort of comparing outcomes in states where they elect judges to states they don't, in fact elected judges do a pretty good job. that we, again, we see more protections for some of the thing wes think are important. so, for example, one of the pieces of evidence that people have found is that there are more protections for workplace rights. so protections against discrimination on the job in

states that have elected judges than in states that have no elected judges. much another that comes through court cases. so, the argument that people have made is that those judges are in fact responding to what is a fairly widely felt preference for protections, for individual rights in the workplace. so i think that elected judges are actually a good thing. >> host: supreme court as well? >> guest: amending -- that's another issue. this is actually not unrelated. it is, of course, difficult to amend our constitution. and so the -- i think that the evidence suggests that, yes, we would be better off -- any kind of institutional reform we could come up with that would make our federal judges and justices even more accountable would be positive. and whether that would mean

something like following the canadian example, allowing notwithstanding clauses or following the dutch example of prohibiting judicial review, or following the example of the states and having judicial elections. however, the constitution is difficult to amend. the reason it's not unrelated to this discussion is because part of what makes judicial review in the united states so impactful, has such an effect, is that when the court issues a ruling on the constitutionality of a federal statute -- if you want to get around if or evade or overturn it you have to amend the constitution, and in many the constitution 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. constitutions can be amended with simple majorities. ...

it gives the court more power that you might want in a democratically accountable government and that's another area that you might think about it. >> host: anna harvey nine supreme court justices are going to see the title of this book about "a mere machine." my guess is that all nine will say we don't worry about what congress thinks of us. just go well i actually think that they might say something else which is it is wrong in the legitimate and bad policy for the congress to think that it can't have any effect on us. sometimes members of congress do think they can have an effect on us and that is a bad thing and it should be nipped in the bud wherever possible. speaking of the justices now,

the justices are very fond of writing and saying that they should be left alone to do their jobs. you know, we would all like to be left alone to have the power to dictatorial the issue whatever rules we might want but that's actually not the way the constitution was defined. so you know part of the book is historical. i go back and look at the writings of the constitution. john adams was not actually at the constitutional convention. but his work was cited by many

of the people who were there and was well-respected and he just said very simply just as the judicial branch should legislate the checks on the legislative there should be checks on the judicial. the whole point of checks and balances was to ensure that there was no single body or single individual or single institution that was unchecked by others. that was the point of the whole system and our constitution actually does check the supreme court by ensuring that justices can be removed. it doesn't happen very often but it can happen and also that their salaries are set by the democratically-elected branch. and so i realize the justices have an interest in securing their independence from the elected branches but i would

respectfully say that that's actually not the way our constitution works. there was a period, i i don't know if you remember this and i guess it was the late 1990s early 2000's when the speaker of the house representative tom delay kind of went on a crusade about the supreme court. we had a conservative majority on the court but it wasn't conservative enough for many of the republicans then serving in congress. there was talk about impeachment. there was talk about using the salary power. there was talk about cutting the budgets for clerks and the justices responded with outrage. how dare you and i remember thinking at the time well this is why -- the constitution gives to the elected branches these powers precisely so our elected