The Supreme Court May Change the Way You Buy Wine

By Eric Asimov

Jan. 10, 2019
…The justices will hear oral arguments in a contentious case involving whether consumers can order from out-of-state wine shops. …

Although I agree with Clement’s argument that Granholm should extend to wine retailers, I do not think this case will do so, at least not in the way Asimov anticipates and most consumers would like. After all, the reasoning in Granholm itself (which is about interstate shipping, albeit by wineries not retailers) seemingly is closer to governing the interstate retail shipping question than any reasoning would reasonably be expected to be in a case that addresses limitations on state regulation of brick-and-mortar retailers, as the Tennessee case does. The states that have refused to recognize Granholm as limiting their regulation of interstate retail shipment presumably would maintain the same position in the face of an adverse decision in the Tennessee case. I do not see a change coming until there is litigation specifically addressing interstate retail shipping (or a change in the relative lobbying power of the industry groups in question).

– Matt

Thanks, Neal. Any view on the likelihood of the case actually changing interstate retail shipping rules?

– Matt

My bet is that it sets everything, even winery shipping, back further.

Maybe. If counting votes on Total Wine’s side, Thomas and probably Alito are hopeless and I would not be terribly enthusiastic about getting Gorsuch, or Kavanaugh, which does leave a pretty narrow window for them to win. But I also doubt there’s a majority for overruling Granholm, so I’m not so worried about winery shipping. (I don’t see Ginsburg or Breyer changing their positions, notwithstanding Ginsburg’s loss of her mind in Wayfair, nor do I think Kagan, Roberts, or probably Kavanaugh, are sticking their necks out to overrule. So the retailers’ association would have to get Sotomayor and a Kavanaugh who spent a lot of time beating his chest about stare decisis to try to appease folks on abortion.)

– Matt

Well we know Kavanaugh likes beer… so maybe…

Oral argument is scheduled for January 16.

LOL.

I have no feeling for this. It doesn’t plot on the “normal” ideological continuum. And only 2(?) current justices were on the Granholm court. The formalists have a slight tendency towards state’s rights and against expansion of the dormant commerce clause, but also tend to be free market thinkers. So I really don’t know. It will be interesting to see.

I’m hoping that Neal’s comment about free-market thinking is what carries the day. But I fear that David’s comment about everything getting more restrictive, including winery shipping, is what we end up with.

I also wonder what role the big corporations will have in pushing for this. I imagine amazon has some feelings about this.

On the court’s decision? None.

Well, the beer wholesalers have predictably come down on the side of the regulation, to the extent Kavanaugh cares about that. :slight_smile:

The beer and wine wholesalers and their pet nonprofits are the primary business interests represented in the amicus briefs, which as Neal observes are generally the only way outside interests have an influence on these decisions. (There is also something called KBHC Partners II, Ltd., which oddly does not say what it is or why it is interested in the case in its amicus statement.)

There are 3 current members of the court who were there for Granholm: Thomas, who consistent with his view that the Commerce Clause has no negative aspect dissented in Granholm and will not subscribe to an opinion here that strikes down the regulation on Commerce Clause grounds; Breyer, who is generally a reliable vote against discrimination under the Commerce Clause, and who agreed in Granholm that it limited the 21st Amendment’s general grant to the states of regulatory authority over alcoholic beverages; and Ginsburg, who voted with the majority in Granholm but has been less predictable in other Commerce Clause cases, particularly in the tax area.

One aspect of the case of which I had not been aware before scanning the briefs of the amici this morning is that the second respondent (the family that got the Total Wines franchise and was going to operate the store) is arguing that the residency requirement should be held unconstitutional on an alternative ground, under the right to travel protected by the 14th Amendment Privileges & Immunities Clause. An amicus law professor is raising a parallel argument under the Article IV Privileges & Immunities Clause. Those arguments might provide a basis to affirm for some justices who are dormant Commerce Clause skeptics or who have a more permissive view of the level of discrimination permitted by the 21st Amendment.

– Matt

I think it would be obvious that the wholesalers (beer, wine, spirits) will always fight against the consumer and the free market. Regulations and direct shipping restrictions built their mansions.

I would not expect the court to take on the 14th A arguments. They were not within the question presented and typically the court will not reach out and decide a case on a ground not advanced by the parties

Posner posted thus

“Granholm was not just about producers”-Justice Sotomayor today in the US Supreme Court oral arguments. I will have more to talk about, but one thing is clear…Tennessee Retailers vs Blair is NOT just about a TN residency requirement. The court will decide if Granholm applies to retailers, and I like our chances…why? because it is the correct answer!

From what I can tell as a non-lawyer, Sotomayor (and Alito) went after Dvoretzky.

Very very difficult to tell with any degree of confidence how the vote will break based on questions asked at argument.

Transcript of argument: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-96_i4ek.pdf

Every time I read through one of these transcripts, I’m more and more depressed by the byzantine house of cards that the legal system continues to construct.

One can only hope that the justice’s ears perk up when hearing Alito’s question: “What is the basis for thinking that the purpose of or a purpose of Section 2 of the Twenty-First Amendment was to authorize the states in this one area, dealing with alcohol, to engage in protectionist activities that wouldn’t be permitted with respect to any other commodity?”