This is the Cato Daily Podcast for Monday, October 14th, 2013.

I'm Caleb Brown.

Fake Judging versus Judicial Engagement.

That's a dichotomy presented in Clark

Neely's new book, Terms of Engagement. He argues that when judges don't engage

with facts and with the language of the Constitution, they're not doing their

jobs. We spoke last week.

In your book you refer to fake judging.

You refer to fake judicial review. So what are those things and what would real judicial review and real

judging look like?

Well in any constitutional case you can have real judging or fake judging. The hallmarks of real judging are a genuine attempt to determine the constitutionality of the government's conduct by determining whether it's pursuing a truly constitutionally permissible end

and whether it is employing constitutionally permissible means to advance that end.

And that determination needs to be made on the basis of real facts supported by real evidence.

If that's what's going on in a case, then you have real judging.

What we have all too often, however, is fake judging.

And fake judging is embodied in something called the rational

basis test which is nothing of the sort it's actually the rationalize a basis test where

the goal is not really to determine what the government is up to and whether it's legitimate,

but to see if the government and the judge working together can make up some legitimate

explanation or justification for the government's actions.

And there's no need, for example, for the government to support its factual assertions with evidence.

There's no need for it to come into court with a sincere explanation of what it's doing.

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