Posted on 01/15/2019 5:02:35 PM PST by LibWhacker
This is the TL:DR version of our coverage of tomorrow's crucial wine hearing at the US Supreme Court. (The more detailed versions are here, here and here).
The stakes: The Court could possibly throw out all state liquor laws that discriminate against out-of-state businesses, potentially allowing residents in much of the US to order wine from anywhere.
The case: The state of Tennessee has laws requiring liquor store owners to be residents for two years, but a quirk in the law makes it effectively 10 years. Two shop owners – the multistate chain Total Wine and a couple who moved from Utah to Memphis for their daughter's health – were issued licenses after a court battle. The Tennessee Wine and Spirits Retailers Association, which doesn't want the competition, is fighting their licenses.
The legal issue: The 21st Amendment, which repealed Prohibition, allows states to set their own liquor laws. The commerce clause of the US Constitution doesn't allow states to favor their own businesses. These two parts of the Constitution are in conflict in Tennessee (and other states as well).
The legal background: In 2005, the Supreme Court ruled in Granholm v. Heald that Michigan and New York could not prohibit wineries in other states from shipping wine to their residents while allowing their local wineries to do so. Because of that ruling, 45 states now allow some form of direct shipping by out-of-state wineries. That ruling mentioned discrimination against out-of-state "producers," leaving open the question about whether it's possible to discriminate against out-of-state retailers.
The justices: Six of the nine justices now are different from 2005. Of the remaining three, Stephen Breyer and The Notorious RBG (Ruth Bader Ginsburg) voted in favor of out-of-state wineries in the Granholm case, while Clarence Thomas wrote an angry dissent. It's nearly impossible to predict how this Court will rule but the questions they ask from the bench on Wednesday should give us some idea.
The health question: Even if Bader Ginsburg does not attend the hearing while recovering from surgery, she can choose to read the transcript and vote, which could be important to avoid a 4-4 tie. That is what she announced she would do with cases last week.
Brett Kavanaugh: We know he likes beer. We have absolutely no idea how he will vote in this case, because nobody is suggesting outlawing beer. We will be curious how much of the oral arguments will mention beer as opposed to wine or whiskey, perhaps for his benefit.
The timing: The Court will hear arguments Wednesday from each side for 30 minutes. Then the justices will discuss it among themselves, out of the public eye. They will vote and somebody from the winning side will write the majority opinion. How that opinion is written is crucial: this case only exists because of how the Granholm ruling was written. So the justice who writes it is important. The ruling could be issued as early as March but with a court certain to be divided, June is more likely.
The possible rulings, listed in order of most likely (in this writer's mind) to least likely:
The Court could rule that states cannot discriminate against out-of-state businesses, based on the commerce clause. This would mean most states would have to rewrite their liquor laws for both shipping and residency requirements (many states have these). Some would choose not to allow any wine shops, even local ones, to ship. But currently only 14 states allow their residents to buy wine from shops outside the state; that number would surely go up.
The Court could rule that the 21st Amendment supersedes the Commerce Clause, allowing states to write any liquor law they want. This was Clarence Thomas' argument in his 2005 dissent, so it's a possibility. This would probably not affect the states that already allow direct shipping by retailers, but many states that were forced in 2005 to allow direct shipping by wineries would probably disallow it.
The Court could write a narrower judgment saying Tennessee's residency law is unconstitutional and ordering the state to rewrite it. This could affect residency laws in many states but not shipping laws.
You might think the third possibility should be most likely because it's the least controversial. But this was already the ruling of the Court of Appeals in the Tennessee case. If the Supreme Court only wanted to make a judgment on Tennessee's residency law it did not need to take the case at all. The justices likely agreed to hear the case specifically because they want to make a broader ruling, because different federal courts of appeal have been making different rulings on the 21st Amendment-Commerce Clause conflict.
The necktie: I will be in the Court's press section to cover the oral arguments. The Supreme Court has a dress code for journalists, so I will be wearing a jacket and necktie. Therefore even if you are there, you will not recognize me.
I know of wine connoisseurs in our state who decry our backward laws. I don’t have a dog in this fight but I see no reason for this law.
The reason is control.
Free the Vine!
Which law?
I used to get wine from NZ. I was there in 2000 and liked the queenstown area vineyards. Shipped some from there and just kept doing it. Fist time i had unoaked Chardonnay. loved it since then.
I was just in Queenstown a few weeks ago, definitely the best part of New Zealand.
ordering wine from out of state
Since both provisions are in the Constitution, wouldn’t it be that the Commerce Clause is general while the amendment is specific, thereby carving out an exception? From a States Rights perspective, I’d root for the Amendment controlling.
Yeah, argument transcripts are long, and until you have read a few, some of the discussion may sound greek, but it's not really as hard to understand what is going on as people think.
Beware of what you read in oral arguments. They are mostly theater. Just because a justice argues a position in orals, doesn't necessarily mean they aren't playing "devil's advocate". Use your brain and combine the Orals with what eventually comes out in the decisions, and you'll have an idea of the pitiful state of the law in our nation today.
did you get to milford sound?
Yes I did, it was great.
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