This is the Cato Daily Podcast for Friday, September 30th, 2016.

I'm Caleb Brown. In the latest edition of Cato Unbound, how and when, if ever, should courts simply defer to the wishes

of the government?

Evan Bernick, of the Institute for Justice, makes his case for judicial engagement over

what he calls judicial abdication.

You use this term judicial engagement, which I've, in my conversations with Clark Neely,

obviously that is trademark Clark Neely. Obviously that is trademark Clark Neely,

as far as I can tell.

It was actually coined initially by Chip Miller,

but it was former President of IJ,

but it was Clark who defined and defended it in terms of

engagement and really popularized the concept. You argue that of course we do

need judicial engagement and to give us a sense of what that actually means, what have we

had up until now?

So what we have now is isolated pockets of engagement or islands of engagement in a sea of judicial

abdication.

In most constitutional settings, judges do not engage. They do not seek to determine what the government is actually

trying to accomplish. They are not impartial. They defer broadly to the government's

factual assertions and beliefs and desires

concerning the law.

And they do not require the government to offer evidence in support of its assertions.

There are few narrow pockets in which judges do engage, and these are contexts in which they apply what is called heightened scrutiny.

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