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Special Report

Judicial Activism vs. Judicial Restraint

Before Elena Kagan opened her mouth on Monday, it was clear that her nomination had renewed the debate over judicial activism versus judicial restraint.

Conservatives have long-maintained that activist judges look at a case, decide what they think the outcome should be and then interpret the law -- or even devise new law -- to fit that outcome. Thus, they say, the Supreme Court in 1965 discovered an all-encompassing right to marital privacy -- nowhere specified in the Constitution -- and used it to strike down a law against birth control in Connecticut.

Eight years later, the court expanded that right and used it to find that the Constitution guarantees the right to an abortion.

Such creative legal reasoning has not proved popular with large majorities telling pollsters that judges should interpret the law, not make it. So liberals have tried to reframe the issue by using the term "judicial activism" to cover conservative decisions that overturn rulings and laws favored by the left.

For example, the Roberts court this year threw out part of the McCain-Feingold campaign finance law that barred a corporate-financed film attacking Hillary Clinton from being shown within 30 days of an election in which she was running. The majority opinion said the law was an unconstitutional infringement on that most-protected form of expression: political speech.

Liberals pounced, calling the ruling a flagrant case of -- you guessed it -- judicial activism.