If the proper role of the judiciary is going to be one of "the defining issues of this presidential election," as John McCain asserted today, he should try to develop a coherent position on the topic.
At his speech in North Carolina, McCain expressed his opposition to judges who issue opinions "wandering farther and farther from the clear meanings of the Constitution" and who solve "policy questions that should be decided democratically."
The problem is that the justices McCain hails as the paragons of constitutional fidelity and judicial restraint -- John Roberts and Samuel Alito -- have been quite activist in a number of cases, departing from the Constitution's text and history and sharply limiting important federal, state, and local laws passed by overwhelming popular majorities.
John McCain knows this, of course, because one of the better examples is FEC v. Wisconsin Right to Life, a 5-4 opinion written by Roberts in 2007 which defangs the limits on corporate issue ads imposed by the McCain/Feingold Bipartisan Campaign Reform Act. McCain initiated the suit against Wisconsin Right to Life and when the Court limited his law he called its opinion "regrettable." He is right about that.