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 representatives can check the court if they want to so they

dared because they are given a constitutional power. >> host: does this extend down to the circuit courts and i'm thinking specifically about some of the marriage cases that are moving around in our country today and it seems to be coming to the supreme court. does your supposition -- >> guest: solo the way article iii is written it applies to all the federal courts in the sense that all federal judges have the same tenure. they have the same compensation clause of article iii which says that congress cannot diminish a judge's salary and office. that applies to all federal judges and justices. the lower federal courts, the inferior court to call them which is not intended as a slur,

the district and the power of courts actually have an additional, an additional lever that can be used against them by the congress which is all federal courts south of the supreme court are established by statute. and what can be established by statute can be disestablished by statute, so you know there is the existence of the supreme court written into the constitution. there are many avenues that the congress has two influence the justices but one thing he can do is simply eliminate the supreme court. it's not in the constitution however all the lower federal courts and establishment can be disestablished so it's another way to pushing the lower federal court judges. in addition there are cases being reviewed by a certain court that there's evidence to

suggest is responsive. i don't -- i have to be a little bit careful because i want to say the incentives are pushing in the same direction but the book focuses on the supreme court cases so i'm not looking at, sort of the next project when you look into appellate court cases. i think we have no reason to think that judges sitting on the appellate or the trial court's experience in a different incentives but we want to do more work on that. >> host: and the harvey lets look and suppose on the marriage case republican majority currently in the house of representatives, democratic president, democratic senate, marriage comes to the supreme court. >> guest: solo my answer to that is going to be in terms of probabilities exist that's kind of the world that i live in.

and one of the interesting things about the evidence that i didn't mention before is the whole role of public opinion. one of the things that i was thinking as i was doing the work is say you find the supreme court is responsive to congress. maybe all that's happening is the public is driving them both. so in the case of marriage for example we know that it's actually quite striking how quickly public opinion on the subject of same-sex marriage has evolved over time and that's definitely pushing in the direction of the few think the court is responding to appellate opinion pushing in that direction of inducing the courts to legalize same-sex marriage. however, if you kind of look at the effects of the congress on the court while controlling for public opinion public opinion doesn't seem to have any opinion

but the court does seem to respond to the institutional incentives in the constitution. and so you know the best bet is as long as you've got a republican house and there are particular reasons why the court seems to respond to the house in particular odds are if i was in the betting market i would bet that the court would respond and not legalize same-sex marriage. it's worth pointing out that the case that came out of california in which a state court has struck the california ban on same-sex marriage written into the constitution the referendum and it comes up to the supreme court in the supreme court allows the state court decision to stand but on burying narrow

grounds that do not apply to any of the existing same-sex marriage bans throughout the country. the court basically said we are allowing the california state court decision to stand which means in california the same-sex marriage ban is overturned that our decision does not affect any of the many same-sex marriage bans around the country so it was a very narrow careful decision and if they were forced to confront the issue, if they are facing a congress that is hostile to the idea of legalizing same-sex marriage absolutely would be afforded by congress. >> host: what is it about the house of representatives? >> guest: glad you asked. this is another thing that seems to indicate how these incentives written into the constitution seem to have an effect even if people don't realize that they are having an effect on their decisions.

the constitution as i'm sure you know gives the house special powers, agenda setting powers so in the case of money bills for example appropriations there is a clause in article i but called the negotiation clause which goes -- gives the house of representatives -- so if we are talking about the justices salaries are their budgets, it has to come from the house first. and so even if you've got a supportive senate and the senate can't do anything until the house moves. so one might suspect this might be particularly different because that's where all the money bills originated. itself of the case that the house has agenda setting power for impeachment. justices can't be impeached until it goes to the house. they have the sole power of impeachment and again that's one of the things that rarely happens but when we are talking

about politics we think that people sometimes if not most of the time are seeking to avoid the bad outcomes so the fact that is sitting there and the house has control seems like you would get the justices extra incentives. what we see in the data it is the justices responding to the house. so again if you want to play the betting game look to the house. that seems to be where the justices -. >> host: and the harvey what's the message behind the cover of your book "a mere machine"? >> guest: the cover is a very simple cover. i think i just wanted, i think i just wanted a very simple cover. actually here's a funny story. i actually wanted on the cover,

the title of the book is inspired by a quote from thomas jefferson who wrote in 1776 lead 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 that he was writing, what he meant by a lawgiver was a legislator. and he said, basically he's saying if you want, if you want laws that are merciful or just or fair look to your legislatu legislature. so design legislative institutions that induce mercy in your legislator in your lie every but don't let the judge get involved. design your judicial institutions so that they don't have very much discretion to overturn what the legislature wants. and i thought that, so the title

of this book is "a mere machine" and i thought the people probably would not have jefferson quote in the back of their mind so i wanted to put in the jefferson quote in the front of the book and the press thought that might look like thomas jefferson had endorsed the book so they wouldn't vote on it. so the idea was "a mere machine" is what we should be thinking about in our courts. we should be designing institutions such that we are restraining our courts are mapping the power to overturn the actions of the democratically-elected legislature. >> host: and the harvey is a professor of politics at new york university, the author of this book "a mere machine" the supreme court, congress and american democracy. thank you. >> guest: thank you.