Before the Supreme Court issued the notorious Kelo decision, Institute for Justice's Chip Mellor warned of an unholy alliance between "judicial activism" and "judicial restraint" (in which freedom is the loser):

Without realizing it, liberals and conservatives are working from opposite ends of the political spectrum, under opposing rationales, to reach the same end: expanded government power. As a result of the political push and pull between those advocating judicial activism and those favoring judicial restraint, two fundamental American rights—the right to earn an honest living and the right to own private property—have been stripped of vital constitutional protection, leaving entrepreneurs and small property owners especially vulnerable to backroom deals and majoritarian whims.

The result of this unholy alliance is ever more encroachment of freedom, with ordinary citizens getting it from both ends.

In effect, we now have a federal appeals court giving a green light to the rankest form of cronyism and favoritism. Despite the starkness of the 10th Circuit’s unanimous ruling, in March the Supreme Court declined to review the case.

As long as the Court shows such extraordinary deference to legislatures and maintains a two-tier approach to constitutional rights, the ratchet operates in one direction—to increase government power. When government growth is proceeding exponentially, setting reasonable outer boundaries might be a good place to start. The problem, however, is that for economic liberty and property rights, the boundaries are set at such an outer extreme that, for all practical purposes, courts cede virtually unchecked authority to government. Bureaucrats become adroit at maximizing their power just short of the boundary. The result is a flourishing regulatory regime that too often leaves abused property owners and entrepreneurs without recourse.

If economic liberty and property rights are to be restored to their rightful place in the constitutional constellation, the courts must go beyond merely setting these outer limits; they must truly revive constitutional protections. Judicial activism and abdication have read these rights out of the Constitution; it is essential that consistent and principled judicial engagement rehabilitate them. Respect for stare decisis must not mean refusal to reexamine wrongly decided cases; it must mean a respect for order that makes transitions as smooth as possible, while at the same time fulfilling the courts’ responsibility to recognize constitutional constraints on government authority.

Courts are not to interfere with this process, lest they be accused of "judicial activism."

But wait a minute! In Kelo the court didn't interfere, and now it's being accused of judicial activism! Yet in reality (and in logic) the holding was based on judicial restraint! An anomaly so odd that today's Philadelphia Inquirer quoted Ann Althouse on the subject:

We all want judges to do some things and not others. One of the things the speakers complained about was the Kelo case, but that was an example of restraint, not activism. The Court declined to enforce a right. And these speakers don't like too much Establishment Clause enforcement, but I'll bet they moan about not enough Free Exercise protection.

Calling things judicial activism which aren't judicial activism is not helpful. Nor is calling them judicial restraint. If a state or local government adoption agency decided (or refused) to place babies with gay couples, I am sure that activists would demand that the Supreme Court put a stop to the government action they hated. Regardless of how you might come down on the merits, demanding that a court intervene to stop something is activism.

I suspect misuse of language arises from conservatives being annoyed by professional "activists," and this makes them use the term to describe all judicial results they don't like with the catchphrase "judicial activism."

At the rate I'm going (with my incessant demands that political activists be logical), I'll need to be actively restrained.

Much more here, including an intrguing quote from Randy Barnett:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in his infamous confirmation testimony?

Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in the Tempting of America?

Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?

Is it activism to construct a doctrine to define the wholly unenumerated "police power" of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?

Perhaps someone like Mr. Barnett could consider writing a "Freedom Restoration Act." The problem is, what one person defines as freedom, another person defines as taking away freedom.

The freedom to take away freedom sounds as oxymoronic as the tolerance of intolerance.

I know that it's no fun to conclude that nothing makes any sense, and I apologize. I'll try to make less of more sense in the future.