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Monday, May 16, 2005

Winos rejoice

The Supreme Court has just handed down its opinion in the wine cases.  It holds: Under the commerce clause, if a state allows direct-to-consumer shipment by in-state producers of wine, it must also allow direct shipment by out-of-state wineries.  (Having not read the opinion, I won't stand by that summary if pressed.)

Frankly, I thought this was not a very difficult case.  What I find surprising is that it was 5-4.  Even more surprising?  The lineup: Kennedy Scalia, Souter, Ginsburg, and Breyer in the majority; Thomas, Stevens, O'Connor, and Rehnquist dissent.

This just goes to show, once again, that the Court is not quite made up of the easily-defined political factions we usually identify.  And that's a good thing.

Scotusblog has the opinions, which I look forward to reading.

Posted by Hillel Levin on May 16, 2005 at 11:41 AM in Law and Politics | Permalink


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I actually think that, as Justice Thomas demonstrates, the text and history of the Webb Kenyon Act and the 21st Amendment make this a hard case that could easily have come out the other way. The history of both are quite clear that they were designed to remove liquor shipments from the reach of the dormant Commerce Clause. Bacchus, which the majority relies on heavily, involved legislation (a discriminatory excise tax) that was unjustifiable as 21st Amendment legislation since it did not serve any conceivable temperance goals, and the state didn't argue that it did. New York had jurisdictional and monitoring reasons, weak though they may have been policy-wise, for requiring an in-state presence. Plus, in any event, Bacchus is an outlier among 21st Amendment cases, which otherwise are unanimous that a state basically has free reign when it's regulating interstate shipments for in-state use. That said, the direct shipment ban is certainly unfair, and the non-lawyer in me is happy to see it go.

Posted by: Jamal | May 16, 2005 5:27:11 PM

If the three-tiered system is itself clearly unconstitutional, I suppose the court could so hold right now. Assuming, that is, that such a decision would not be beyond the scope of this litigation.

However, if an argument could be made that the three-tiered system is constitutional if done properly, then the court should not substitute its own policy preferences for that of the legislature.

That is, the mere fact that you want cheap liquor (and you don't think the legislature will give it to you) isn't a good enough reason to take this out of the province of the legislature. ;-)

Posted by: amosanon1 | May 16, 2005 1:22:13 PM

Quite right, it should be flipped back up to the NY legislature. But that means that the three-tier system will probably remain in place (due to the immense pressure of the wholesaler's lobby) and I still won't be able to order my wines directly from the wineries....until the courts have to intervene *again* for the next challenge, this time to the three-tier system.

Wouldn't it be more convenient, not to mention cost-effective, if the courts just took care of it themselves this time around?

Posted by: Laura | May 16, 2005 1:18:20 PM


Excellent point. But wouldn't this be the perfect kind of case to boot right back to the legislature? That is, instruct the legislature that it has a certain number of days to cure the constitutional problem; or else the Court will flip a coin (or something).

The goal in these cases should generally be to make the legislature fix its own messes, rather than to have the courts fix them--and provide cover to legislatures when winos like yourself revolt.

Posted by: amosanon1 | May 16, 2005 1:10:09 PM


This wino is indeed rejoicing. But the question, for New York, is how the Second Circuit will treat the three-tier system which is currently in place. The holding of the case just invalidates the New York law which gives in-state wineries an advantage (shipping directly to New Yorkers) over out-of-state wineries (which are barred from doing so). One way the Second Circuit could comply with the decision on remand would be to simply eliminate the in-state winery advantage. This would preserve the three-tier system, and still prohibit we poor New Yorkers from ordering our wines directly from California.

Let's hope the Second Circuit continues with its pro-wine stance and eliminates the three-tier system!

Posted by: Laura I Appleman | May 16, 2005 1:02:58 PM

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