Here at the Institute for Justice we disagree with both sides. We reject the terms “activism” and “restraint” as they are commonly used as two sides of a false dichotomy. Instead, judges should practice judicial engagement, no matter what the context. That is, they should do their jobs. The First Amendment says “Congress shall make no law . . . abridging the freedom of speech.” It is not “activist” to actually enforce that language. Judges, just like Senators, swear an oath to support and defend the Constitution. Instead of complaining when judges do their job, we should be outraged that many judges, such as the dissenters in Citizens United, vote to uphold laws that violate the Constitution. In short, the real outrage is not judicial engagement, but judicial abdication.
See also this note re the dumbest campaign finance crackdown you’ve ever heard.