The Constitution is not neutral. It was designed to take the
government off the backs of the people.
—Justice William O. Douglas1
From the beginning of my legal education, law for me has been intertwined with wine. Fittingly, my first U.S. Supreme Court argu- ment 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 poli- tics, even when politics are dominated by powerful special interests, is at the heart of the debate over what is pejoratively called “judi_ cial 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 win- ning, 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