Excerpt: "DAVID'S HAMMER: The Case for an Activist Judiciary"

An excerpt from the new book


DAVID'S HAMMER

The Case for an Activist Judiciary

by Clint Bolick


Published by the Cato Institute

and reprinted here with permission




ISBN: 1933995025

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David's Hammer is the winner of the June 2007 Lysander Spooner Award for Advancing
the Literature of Liberty. For more information about the Lysander
Spooner Awards, CLICK HERE.



To go to our full review, or to go to purchase the book, CLICK HERE.



The excerpt, below, is the first chapter of the book, David's Hammer. Enjoy!



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DAVID'S HAMMER

The Case for an Activist Judiciary




by Clint Bolick




CHAPTER 1:

MRS. SWEDENBURG GOES TO COURT

The Constitution is not neutral. It was designed to take the government off the backs of the people.

—Justice William O. Douglas

From the beginning of my legal education, law for me has been intertwined with wine. Fittingly, my first U.S. Supreme Court argument was about the beverage that is the sublime joint product of nature and human ingenuity.



The case of Juanita Swedenburg, a proud woman, a farmer and entrepreneur who asks nothing of her government but to be left alone to mind her own business, is emblematic of the debate over the role of the judiciary in a free society. For when all else failed in Mrs. Swedenburg's quest to pursue her livelihood free from arbitrary government interference, she did what many Americans do when their basic rights are violated: she turned to the courts for justice. Whether the courts should help ordinary Americans like Juanita Swedenburg or should leave them to the mercy of democratic politics, even when politics are dominated by powerful special interests, is at the heart of the debate over what is pejoratively called "judicial activism."



For better or worse, the task of resolving such important matters is largely in the hands of lawyers. Law, as William Shakespeare understood, is not always the noblest of professions. Many lawyers make their living off the misfortunes and disputes of others. It is, for most, a mercenary profession: lawyers take their clients as they find them; they are obliged to zealously represent them; and winning, rather than justice, is the goal of most litigation. Lawyers draft the laws that make society so complex that lawyers are needed even for the simplest transactions; then lawyers make the simplest transactions so complex that lawyers are needed to decipher and, in the end, litigate them. The American legal system, designed of course by lawyers, is rigged so that even the most frivolous claims entail little risk for the lawyers pursuing them; indeed, the cost of defending against litigation is so great that "voluntary" settlements, which invariably entail a payoff to the lawyer prosecuting the action, are routine. Those costs are then passed along to all of us in the form of higher prices and fewer choices. Law is often such a racket that sharks are said to never attack a lawyer because of professional courtesy.



Most Americans seem to share my disdain for the legal profession as a whole. Among American professions requiring a doctorate, lawyers alone are deemed not entitled to use the "doctor" honorific, substituting instead the quaint term "esquire" following the name. By contrast, when I visit Germany, I am greeted as "Herr Doktor Professor" Bolick—a double honorific!—suggesting that at least in some countries, lawyers are deemed worthy of special respect. I'm not sure that idea would go over very well in our country.



And yet, as cynical as the legal system and profession can be, American law also has a romantic aspect. For all its flaws, law in a free society is the most powerful tool to correct injustice. In no other system in the world can the law so readily bring the mighty to account. In our nation, the courtroom is the great equalizer. A creative lawyer can change the world in one fell swoop. That was what the Framers of our constitutional experiment intended, for they understood that courts were necessary to provide the ultimate check against tyrannical government. Whatever maladies courts might visit upon American society, they continue to play that liberty-enhancing role today. Our judiciary is at once both a legacy of and prerequisite for our enduring free society.



I experienced that revelation during college. I had prepared for a career in teaching and politics. As I neared graduation, however, I discovered that neither profession was suited to an idealist. Our public education system, even in the late 1970s, was in serious decline; it required systemic change, which was not achievable one student at a time. My experiences with politics, both local and national, suggested that principle was, to say the least, not the fore-most consideration. At best, compromise in a forward direction seemed possible, but not sweeping change.



As I was discovering all that, I was also taking an undergraduate course in constitutional law. As the son of a welder whose formal education never went beyond eighth grade, I'm not sure I had ever even met a lawyer, and like most Americans, I held the legal profession in disdain. I took the course hesitantly, mainly because of the reputation of its teacher, Robert G. Smith, the esteemed Drew University professor emeritus of political science. Reading about cases such as Brown v. Board of Education was an epiphany: law used as the Framers intended could work revolutionary change in our society, bringing down systems of oppression such as the separate-but-equal regimes. Unlike politicians, lawyers arguing in the courts can hold fast to underlying principles and achieve change without compromise. The appeal was alluring, and before I knew it my Volkswagen Dasher was packed with all of my belongings on a cross-country trek to law school at the University of California at Davis.



Davis proved to be a harsh environment. Diversity was encouraged in everything except philosophical viewpoints. Having experienced a true liberal arts environment at Drew, I was astounded at the ideological homogeneity and hostility that permeated Davis. So I took my New Jersey palate to the nearby Napa Valley and found frequent sweet refuge in the head-spinning assortment of wines. The free tastings were perfect for a poor student's budget. And when my classmates in their collective wisdom chose Ralph Nader as our commencement speaker (after all, Jane Fonda, who had spoken previously, was a tough act to follow), I celebrated my liberation instead with my family in the more congenial surroundings of the Napa vineyards.



Armed with a law degree and somehow having managed to convince the California legal cartel that I was fit to practice, I immediately began suing bureaucrats for a living. Nine years later, in 1991, I cofounded the Institute for Justice (IJ) in Washington, D.C., with Chip Mellor. Many of the cases my IJ colleagues and I litigated are discussed in the following pages. Until I left IJ in 2004 to work full-time for school choice, I often said that my colleagues and I had the greatest jobs in the legal profession: we got to choose our cases, choose our clients, and not charge anything for our representation. Best of all, the people we sued were bureaucrats.



Although my interest in wine persisted as I embarked upon my legal career, some time passed before that passion dovetailed with my work. My curiosity was sparked, however, during a visit in the early 1990s to a small winery in bucolic Middleburg, Virginia. The proprietor was a striking older woman, Juanita Swedenburg, who owned and operated the winery with her husband. She produced several good wines, including a chardonnay with the toastiest nose I can remember. We got to talking, and Mrs. Swedenburg asked me what I did for a living. When I told her that, among other things, I challenged regulatory barriers to entrepreneurship, she exclaimed, "Have I got a regulation for you!"



Most states, it turned out, prohibited direct interstate shipments of wine to consumers. Thus, if tourists from another state visited Mrs. Swedenburg's winery and asked how they could obtain her wines back home, she would have to reply, "You can't." The only way Mrs. Swedenburg could sell her wines in other states would be to obtain a distributor, and most distributors have little interest in handling a few cases from an obscure Virginia winery. Nor was Mrs. Swedenburg inclined to hand over 30 percent of the retail price to a distributor who added nothing of value. For all practical purposes, Mrs. Swedenburg's small business was shut out of the market outside her home state.



As a descendant of settlers who fought in the American Revolution, Mrs. Swedenburg was outraged that such a stupid law could exist in a nation with the greatest free-enterprise system in the world. I wondered too. Indeed, the problem seemed widespread: I knew obtaining wines from some of my favorite small wineries in California was difficult. Virginia, it turns out, allowed direct shipment to consumers of wine produced within the state but not from wineries outside its borders.



But it would be several years before I could turn my attention to challenging the laws. I was extremely busy with other cases, and I knew my colleagues at IJ would greet with skepticism any case I proposed involving wine. I would have to demonstrate that some bigger principle was at stake than my passion for wine. Most of the cases at IJ involved states' imposing oppressive restraints upon their own citizens, which we challenged under the Fourteenth Amendment; the wine issue, by contrast, presented a trade barrier erected by some states against entrepreneurs in other states. In the meantime, I had to avoid Mrs. Swedenburg's winery lest she ask me why I wasn't taking on her legal albatross.



When finally I had a chance to turn my attention to the issue of direct interstate shipment of wines, I found that indeed a bigger principle was involved: freedom of commerce among the states, whose protection was one of the principal motivations for creating the U.S. Constitution. Under the Articles of Confederation, states were locked in debilitating trade wars. To protect their own industries, states would shut off imports from other states. If such actions persisted, the United States never would constitute a single economic union, which, in turn, would inhibit its prosperity. The Framers of the Constitution saw clearly that the states could not be trusted to resist protectionist temptations and that the remedy would be to confer authority upon Congress to regulate trade, thereby preventing states from enacting parochial trade barriers that impeded the national interest in free domestic trade. That understanding took the form of article I, section 8, of the Constitution, which delegated to Congress the exclusive authority to "regulate Commerce... among the several States."



Those few words, that seemingly simple command, have given rise to much of the debate over judicial activism during the past 75 years. The overarching question, one that I will touch upon later, is whether the Framers, in giving Congress the authority to regulate commerce, meant to limit that power to commerce or rather to allow Congress to regulate everything. Given that the latter construction not only ignores the plain meaning of the clause but also fundamentally transforms the Constitution from a charter of limited and defined powers into an open-ended grant of plenary national authority, the answer to the question seems obvious. But apparently it is not, as we shall see.



The question raised in the wine context was a different and also recurring one: what happens if the states enact trade barriers but Congress does not exercise its authority to regulate commerce in a given instance? In the face of congressional silence, may states create protectionist trade barriers? In other words, is affirmative congressional action necessary to effectuate the core purpose of the commerce clause, or is the clause self-executing so as to prohibit state-erected protectionist trade barriers of its own accord? The doctrine that the commerce clause by its own terms prohibits such trade barriers is referred to as the "dormant" or "negative" commerce clause.



This is the stuff of many a scholarly debate and so may make the eyes of mere mortals glaze over. Yet the answers to that question—like the answer to so many seemingly arcane questions of constitutional law—are of utmost importance to the likes of Juanita Sweden-burg. And not to her alone. More than two centuries after ratification of the Constitution, states still cannot resist the temptation to distort markets to benefit their own domestic industries to the detriment of out-of-state competitors. So that, as if to demonstrate the pre-science of the Framers, the constitutional guarantee of free trade in the Internet era is perhaps even more vital than it was in the founding era.



That is because of the Internet's revolutionary power of "disinter-mediation"—the ability of producers and consumers to meet and transact business in cyberspace, without the necessity, or added cost and inconvenience, of a middleman. In this way, the Internet is the greatest agent of consumer freedom in the history of mankind.



And yet, as Star Wars teaches, the Empire always strikes back. Some middlemen have adapted to and flourished in the Internet era. But others have resorted to the age-old tradition of seeking government protection against competition and innovation. Businesses selling products ranging from insurance to automobiles to contact lenses to caskets have flocked to their state legislatures to restrict or prohibit transactions over the Internet, thus preserving their economic hegemony and limiting consumer choices.



That was the situation with wine. Over the past few decades, the number of American wineries has grown to approximately 3,000 in all 50 states—the overwhelming majority of them small, family-run enterprises that produce only 2,000 or 3,000 cases each year. At the same time, the liquor-distributor industry experienced extreme consolidation, so that today a handful of behemoths dominate the multibillion-dollar industry. As a result, the distributors can distribute only a fraction of the tens of thousands of distinct wines produced each year in our nation alone. By contrast, the Internet offers the potential that middlemen cannot for matching consumers with their favorite wines, no matter how vast the choices.



Bans on direct shipment of wine are a relic of the post-Prohibition era, when states wanted to stifle organized crime by separating the production of alcohol from its distribution. They created mandatory "three-tier" systems of alcohol distribution: producer to distributor to retailer. In the unique context of wine, however, a number of states, eager to promote their own wine production, acted to allow direct shipping from in-state wineries. To protect in-state distributors, however, many states also acted to forbid shipping by out-of-state wineries directly to consumers. When IJ filed a lawsuit against New York in 1999 on behalf of Juanita Swedenburg, 31 states prohibited direct interstate wine shipments to consumers. Seven of them made such shipments a felony. The discriminatory trade barriers presented a textbook example of precisely the evil that the Framers intended to forbid when they placed the commerce clause in the Constitution.



The Federal Trade Commission studied the issue and found that "State bans on interstate direct shipping represent the single largest regulatory barrier to expanded e-commerce in wine." The states' professed regulatory concerns—protecting against underage access to alcohol and tax collection—all could be facilitated, the commission found, through regulatory actions short of discriminatory prohibitions against direct shipping.



The trade barriers raised the question of the scope of the "dormant" commerce clause, which in reality has never been dormant. Decades of cases have found that where a state regulates commerce not by one set of rules but by two—one regulatory regime that applies to out-of-state products and another, less-onerous regime for domestic products—the burden shifts to the state to demonstrate a compelling state interest that cannot be achieved through less-burdensome means. By that rule of law, many discriminatory trade barriers have been struck down over the years—effectuating the Framers' desire to ensure a free national market.



That doctrine likely would have resolved the matter in Juanita Swedenburg's favor if she were selling a product other than alcohol. But another constitutional provision—the Twenty-First Amendment, which repealed Prohibition—pertains directly to alcohol. That amendment prohibits the "transportation or importation into any State... for delivery or use therein of intoxicating liquors, in violation of the laws thereof."



For some, those words began and ended the debate. Where prohibited by state law, direct shipping of wine unquestionably encompassed the "transportation or importation" of "intoxicating liquors" into a state "in violation of the laws thereof." Therefore, some would argue that regardless of a state's motivation, its alcohol laws are protected by the Twenty-First Amendment.



Nevertheless, no Constitution would have existed for the Twenty-First Amendment to amend were it not for the constitutional guarantee of national economic union. The Twenty-First Amendment did not repeal the commerce clause. When faced with seemingly competing constitutional provisions, the proper role of courts, my colleagues and I argued, was to harmonize the two provisions, not to aggrandize one while draining the other of meaning.



The surface conflict between the commerce clause and the Twenty-First Amendment also raised a more fundamental question lurking beneath much constitutional litigation: is the Constitution a grant of government power to which rights are the exception or a recognition of individual rights to which government power is the exception? When faced with a dispute between an asserted freedom and an asserted government power, should a court indulge a presumption in favor of government power or individual liberty? The answer to that threshold question of constitutional interpretation would affect not only Juanita Swedenburg but also scores of other people whose rights are restricted by government power.



For some, the questions raised by the direct-shipping issue were quite easy. The first appellate judge to rule on the issue was Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit, a jurist who does not lack for self-assurance. Like many conservatives, Easterbrook doubts the doctrine that the commerce clause on its own accord prohibits protectionist trade barriers. For Easterbrook, the question presented was one of states' rights, which should triumph because Congress had not exercised its regulatory authority to prevent state regulation. In upholding Indiana's direct-shipment ban, the opening words of Judge Easterbrook's opinion clearly fore-cast the outcome: "This case pits the twenty-first amendment, which appears in the Constitution, against the 'dormant commerce clause,' which does not."



For others, the question was not so simple. The leading U.S. Supreme Court precedent was a 1984 case, Bacchus Imports v. Dias, in which the Court struck down a Hawaii law that exempted certain liquors produced in state from an otherwise applicable alcohol tax. The obvious purpose was to benefit domestic producers. (Ironically, the same Frank Easterbrook who later as a judge would disdain the dormant commerce clause argued the Bacchus case successfully for the challengers.) The Bacchus Court harmonized the commerce clause and the Twenty-First Amendment, noting that although the amendment's scope was broad: "One thing is certain: The central purpose of the [Twenty-First Amendment] was not to empower states to benefit local liquor industries by erecting barriers to economic competition. " For that reason, the Court held, "State laws that constitute mere economic protectionism are... not entitled to the same deference as laws enacted to combat the perceived evils of an unrestricted traffic in liquor." So if the courts applied Bacchus, the question in our case would be whether the state's ban addressed "the perceived evils of an unrestricted traffic in liquor" or whether in reality it constituted "mere economic protectionism."



The wine cases were characterized by remarkable cross-ideological alliances on both sides. On our side were prominent conservatives such as Kenneth Starr and Barbara Olson; on the other side, conservatives included Robert Bork, C. Boyden Gray, and Miguel Estrada. Our "free the grapes" legal team also included such liberal stalwarts as former Stanford Law School dean Kathleen Sullivan and University of Indiana lawyer Alex Tanford, who frequently litigated cases for the American Civil Liberties Union and was a debate opponent of mine on the school-choice issue. Conservative jurists, such as Judge Easterbrook of the Seventh Circuit and Richard Wesley of the Second Circuit, reached opposite conclusions from other conservatives, such as J. Michael Luttig of the Fourth Circuit and Danny Boggs of the Sixth Circuit; liberal judges such as Sonia Sotomayor of the Second Circuit were at variance with other liberal judges, such as Martha Daughtrey of the Sixth Circuit. Never before had I litigated an issue that transcended ideological boundaries as dramatically as this one did. Yet sharp lines of rhetorical demarcation existed: judicial "activism" versus judicial "restraint," and "states' rights" versus the supremacy of the federal Constitution and national economic union.



Although several cases raising similar legal claims would be litigated by various advocates en route to the U.S. Supreme Court, my colleagues and I decided to challenge New York's law. We chose New York for two major reasons: after California, New York's wine market is the largest in the United States, and its direct-shipment laws discriminated in favor of New York wineries and against out-of- state wineries. Notably, almost all of the New York wineries supported our lawsuit: although they enjoyed sheltered markets in New York, they were shut out from direct shipping to other states in retaliation for New York's ban on direct out-of-state shipping.



In challenging the New York regime, we were taking on the big boys. No sooner did we file our lawsuit than seven powerful interests intervened to help defend the law: the state's four largest liquor distributors, whose combined revenues exceeded one billion dollars annually; the package stores, which enjoyed a monopoly over the retail sale of interstate wine; the truckers' union, which enjoyed a monopoly over wine delivery; and the Rev. Calvin Butts, who was concerned about underage access. Not all of the interests on the other side seemed entirely savory: the press reported that around the time of our lawsuit, 50 Federal Bureau of Investigation agents raided one of the liquor distributors seeking evidence of mob connections. The massive orchestrated special-interest intervention in our case suggested that New York was the chosen field of battle in which the liquor-distributor behemoth would take its stand.



The New York litigation made for unusual adversaries as well. The lead lawyer for the liquor distributors was Randy Mastro, a prominent New York lawyer who had served as deputy mayor under Rudolph Giuliani. On our side as an expert was John Dyson, a businessman who owned wineries in Italy, New York, and California, and who was another Giuliani deputy mayor. Adding to the ironies was that Mastro's late father had been a political science professor of mine at Drew University and frequently had urged that some day I needed to work with Randy. When I met Randy, who bears an uncanny physical resemblance to his dad, I told him I didn't think that this encounter was what his father had in mind. The high-priced, big-firm lawyers on the other side tended to be the types who judged other attorneys by their hourly rates. Given that my colleagues and I at IJ charged our clients nothing, I can only imagine the disdain in which our adversary lawyers held us.



The quality and temperament of a judge can make all the difference in a case. We were very fortunate that the judge assigned to us was Richard Berman, an appointee of President Bill Clinton who was bright, courteous, thoughtful, thorough, and judicious. During our first court hearing, my colleague from IJ and I were literally surrounded in a semi-circle by a phalanx of 18 lawyers representing the combined interests on the other side. Judge Berman smiled when I likened it to David versus Goliath. In subsequent hearings, most of our opposing lawyers sat discreetly in the gallery, but the image was indelibly established.



Throughout the trial-court litigation, the lawyer for the state barely made a peep, ceding the law's defense to the liquor distributors' lawyers. They in turn litigated the case with such bombast and hyperbole that it would have driven me crazy if I had not grown up among similar personalities in neighboring New Jersey. The spectacle of the liquor distributors' tail wagging the state's dog was enormously helpful to us in demonstrating that the purpose and effect of the laws were protectionism, not public health and safety.



That was the case we put on. We showed that the original three-tier system was adopted at the behest of the liquor distributors. When the legislature in the 1990s overwhelmingly passed direct-shipping legislation, the liquor distributors urged Governor George Pataki to veto it, and he did, citing concerns for domestic industry and tax revenues. As for underage consumption, we produced state records showing that the relevant numbers were 16,000 and zero—the first being the number of reported instances of minors' obtaining alcohol through the three-tier system over a five-year period; the second being the reported instances of minors' obtaining alcohol over the Internet during the same period. I told the judge that if my college-age son could navigate the system by ordering wine over the Internet using a credit card, satisfying the winery that he was over 21, arranging to accept delivery on campus of a box labeled "Alcohol: Adult Identification Required," and producing another acceptable identification upon delivery, I would celebrate his ingenuity with him over a glass of cabernet. Unfortunately, the existing system allows minors far too many ways to obtain alcohol for them to have to resort to the far more cumbersome process of ordering it over the Internet. Ultimately, our case rested on the logic that whatever rules applied to deliveries to consumers by in-state wineries ought to apply also to deliveries by out-of-state wineries; the fact that two sets of rules applied rather than one demonstrated that the purpose and effect of the laws were protectionist.



Our adversaries relied heavily on the underage access issue, offering evidence that states with permissive direct-shipping laws also reported higher rates of binge drinking on college campuses. (It was hard to imagine college students guzzling Mrs. Swedenburg's chardonnay at a keg party, but maybe kids have become more sophisticated since my college years.) Without a shred of irony, the liquor distributors joined forces with Christian conservatives and groups committed to alcohol abstinence. The distributors argued that state authority under the Twenty-First Amendment was plenary and that Congress had affirmatively given states the power to ban direct interstate shipping.



Judge Berman didn't buy it. "That the New York direct shipping ban on out-of-state wine burdens interstate commerce and is discriminatory (on its face) is clear," he ruled. Moreover, he found that "the direct shipping ban was designed to protect New York State businesses from out-of-state competition." Applying the Bacchus decision, he concluded that the Twenty-First Amendment provided no shelter because the "State has not established that its goals cannot be accomplished in a nondiscriminatory manner." As a result, he ordered that the state allow out-of-state direct shipment of wine on the same terms and conditions as in-state direct shipping.



The liquor-distributor empire quickly struck back, filing an appeal in the U.S. Court of Appeals for the Second Circuit. That court reached a starkly different result on states' rights grounds. Recognizing that a majority of the Second Circuit's sister courts had ruled in favor of challenges to discriminatory wine shipment bans, Judge Richard Wesley found that those decisions had "the effect of unnecessarily limiting the authority delegated to the states" under the Twenty-First Amendment. Moreover, the court found that no real discrimination took place, for "all wineries, whether in-state or out-of- state, are permitted to obtain a license as long as the winery establishes a physical presence in the state." The state's interest, in reality, was not protectionism but in ensuring "accountability," which could be accomplished by requiring a physical presence of all wineries.



The "physical presence" requirement sounded benign—who could object to a business establishing a physical presence in the state in order to ensure "accountability" to the state's legitimate regulatory regime? In practice, however, that jurisprudential innovation could have created the exception that would have swallowed the commerce clause. A small winemaker like Juanita Swedenburg would have found opening and fully staffing a warehouse just to gain the privilege of selling a few cases of wine in New York economically impossible. Multiply that burden by 50, if other states followed suit, and the rule would close markets to small wineries all across the United States. The decision boded chilling ramifications far beyond wine: if every state could require a physical presence upon the pretense of health or safety concerns, the vast promise of the Internet to expand consumer freedom would halt in its tracks. After all, the whole point of the commerce clause was that an enterprise in one state could do business in another state without having to move there. The state's legitimate regulatory interests with regard to alcohol could be achieved in less onerous fashion, such as requiring a license in order to do business. Indeed, federal law provides plenty of potent tools to enforce state alcohol laws against out-of-state companies.



Because the Second Circuit decision conflicted with decisions from other circuits, prospects for review by the U.S. Supreme Court looked promising. But once the high court took the case—along with a companion case from Michigan, in which the trial court had upheld the direct-shipment ban but the appeals court had struck it down—the prospects didn't seem especially encouraging. Although we had the leading precedent on our side, 20 years had passed since the Bacchus decision. In that time, all five of the justices in the majority were gone, while the three dissenters (Chief Justice William H. Rehnquist and Justices John Paul Stevens and Sandra Day O'Connor) were still on the Court. Moreover, Justice Thomas believes no such thing as the dormant commerce clause exists and the rights often protected under that doctrine in fact were intended to be protected under other constitutional provisions. We tried to attract Justice Thomas's vote by including a separate claim under the privileges and immunities clause of article IV, section 2, of the Constitution, whose scope largely mirrors the commerce clause, but the Court did not accept review on that issue.



So we assumed that we began our trek to the U.S. Supreme Court with four likely votes against us and no certain votes in favor. If our math was correct, we would need to cobble together the votes of Justices Anthony Kennedy, Antonin Scalia, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—an odd-couple lineup that apparently never had been previously aligned in a 5-4 decision.



The uncertain endurance of the Bacchus decision allowed our opponents to return to basics and argue that state power under the Twenty-First Amendment was plenary. A "plain language" and states' rights approach might appeal to Justice Scalia and tip the balance against us. We countered with a strong historical analysis showing that the Twenty-First Amendment had merely restored the status quo prior to Prohibition—and that discrimination and protectionism were not encompassed within the states' powers to regulate alcohol at that time. We also had the benefit of a strong record of protectionism in the New York case and of the Federal Trade Commission report that laid waste to the states' defenses relating to underage access and taxation.



While the case headed toward argument before the Supreme Court, both sides made their cases in the court of public opinion. State attorneys general launched high-profile sting operations ostensibly to demonstrate how easy it was for underage buyers to game the system. (Revealingly, the sting artists never ordered successfully from wineries, but from retailers, who were licensed by the three-tier system yet avoided its regulations.) On our side, the feisty and highly quotable Juanita Swedenburg was the poster-child small entrepreneur fighting for her right to earn an honest living. As the argument approached, Mrs. Swedenburg's husband and business partner, Wayne, passed away, depriving her of a major source of strength and support. But if her determination ever flagged, I never saw it.



In our side's oral argument, former Stanford Law School dean Kathleen Sullivan argued the Michigan case, and I represented the New York plaintiffs. To buttress their states' rights argument, New York and Michigan jettisoned the liquor distributors' lawyers, who had done the heavy lifting in the earlier rounds, in favor of the solicitors general from the two states. But the move didn't work, because the states' lawyers insisted that their powers under the Twenty-First Amendment were without limit, essentially asking the Court to overrule Bacchus. Even Justice O'Connor, who had dissented in Bacchus, seemed taken aback by the states' extreme position. For my part, I pointed out the heavy influence of protectionism in New York's regulatory scheme and assailed the "presence" requirement. Were the justices to visit Swedenburg Winery (which I cheerfully encouraged them to do), they could find Mrs. Swedenburg harvesting grapes, tending the tasting room, bottling wine, and filling orders. The thought that she could afford to open a New York operation in order to sell a few cases of wine there was ludicrous.



In the end, the Court divided 5-4 in striking down the discriminatory Michigan and New York laws. Justice Kennedy, writing for the majority that included Justices Scalia, Souter, Ginsburg, and Breyer, declared that the effect of the laws was "to allow in-state wineries to sell wine directly to consumers in that State but to prohibit out-of- state wineries from doing so, or, at the least, to make direct sales impractical from an economic standpoint." Such laws, the Court ruled, "deprive citizens of their right to have access to the markets of other States on equal terms." The Court flatly rejected the physical presence defense, remarking that "for most wineries, the expense of establishing a bricks-and-mortar distribution operation in 1 State, let alone all 50, is prohibitive." Nor did the Court credit the states' underage access or taxation arguments, finding that less-onerous alternatives were available to service legitimate state interests. The Court's legal holding was simple—"state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause"—and the New York and Michigan laws violated that principle, with no convincing justification.



For Mrs. Swedenburg, the victory was sweet vindication. As fate would have it, although I spoke to her the day the decision came down, I didn't actually get to see her until months later, whereupon I received what must have been the biggest hug of my entire life. The case was a vindication of the American legal system as well. In few other nations could one small entrepreneur prevail over the powerful combination of massive commercial interests and government. Her triumph demonstrates that ours truly is a nation governed by the rule of law.



Indeed, that spectacle—the judicial redress of injustice visited upon an individual by the government—is a hallmark of a free society. By contrast, the New York Times recently profiled the failed attempts of Chinese citizens to challenge oppressive laws, years after the legal system in Communist China ostensibly was changed to allow such actions. That Americans can bring down tyrannical laws through peaceful judicial action, while people in many other countries cannot, is testimony that ours remains among the freest nations in the world.



Yet plainly, not everyone would agree that such judicial power is a positive phenomenon. The legal clash in the direct-shipping cases between the small wineries and the liquor distributors is a microcosm of the debate over the proper role of the courts in the American constitutional system. Those who assert that courts should defer to democratic processes would consign the likes of Juanita Swedenburg to defeat and despair, while rendering a nullity the constitutional promise of freedom of commerce. There is no way that Juanita Swedenburg could take on the powerful liquor distributors in the political arena. Indeed, she is not even a citizen of the state in which the laws that constrained her opportunities were enacted. New York wineries had succeeded in gaining exemptions from the onerous direct-shipment laws for themselves, but outsiders like Juanita Swedenburg—even banded together in a trade association and aligned with New York consumers who wanted to purchase their wines—were no match in the legislative arena against the powerful liquor-distributor oligopoly and its lobbyists and political contributions.



So the only recourse for Juanita Swedenburg was through the courts, wielding the commerce clause, which was made part of the Constitution precisely to protect the ability of people like her to engage in commerce throughout the nation. In the judicial arena, despite the resources arrayed against her, that proud Virginia farmer was able to prevail.



But many on both sides of the political spectrum—as reflected in the divergent judicial opinions on the direct-shipping issue in the lower courts and the Supreme Court—would argue that the courts should have deferred to the states and that the result constitutes raw judicial activism. Some conservatives would go even further and assert that courts have no business invalidating laws in the first place—that the entire enterprise of "judicial review" of laws is constitutionally illegitimate.



As I will discuss in the following pages, federal courts have over-stepped their constitutional bounds in many instances over the past two centuries. Judicial activism in many instances is inappropriate and presents a serious challenge to the rule of law.



But in our efforts to curb improper judicial activism, we should be very wary about throwing out the baby with the bath water. For better or worse, courts in a free society are the ultimate guardians of our most precious liberties. As Justice Ginsburg recently observed, courts provide a vital safeguard "against oppressive government and stirred-up majorities." Alone among the branches of government, the judiciary is charged with the vital responsibility of standing up for the rights of the individual against the government leviathan, no matter how broad the democratic mandate.



Were it otherwise, were we to indulge the recurrent impulse to curb the power of the judiciary to protect individual liberties, relying entirely instead on the willingness of elected and appointed government officials to restrain themselves in the exercise of their powers, the result for Juanita Swedenburg—indeed, for all of us—would be that the rights we hold dear under the Constitution would not be worth the paper on which they're written.



With a proper understanding of the limited yet essential role of the judiciary in a free society, we shall see that the judicial intervention reflected in cases such as Mrs. Swedenburg's is worthy of a hearty toast over a fine glass of wine.





[Footnotes have been omitted.]



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From David's Hammer by Clint Bolick. Copyright © 2007 by the Cato Institute. Reprinted here by permission of the author and the publisher.




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