Arguing Wine: The Supreme Court Version

It has been a while now since the wine direct shipping cases concering laws in New York and Michigan were argued in front the Supreme Court.

If you read the transcript (pdf) of those oral arguments you really have to concluded that the anti-shipping forces had quite a hill to climb in convincing the justices that the states’ ban on interstate shipment of wine was constitutional.

The transcript of the arguments seem also to indicate that many of the justices were rightly concerned with the states’ justification for banning shipments. The notion, put up by wholesalers for the most part and also argued by the lawyers for the states, that these laws prevented minors from getting wine, was practically dismissed out of hand. However, there was significant discussion concerning the ability of states to be able police wineries that were out of state. The states argued that it was nearly impossible to inspect a California winery all the way across the country, making it necessary to require all those who wanted to sell direct to the consumer to have an in-state presence.

This contention led to significant discussion of how much policing was actually going on in the states of their own wineries. The reply? “None”. You could almost hear the collective groans of the justices with that admission. Yet, the states’ advocates stuck to their guns, arguing that even though some states do just fine in terms of coercing out of state wineries to collect taxes, and even though there are laws on the federal books allowing the feds to threaten loss of license if any state alcohol rules are broken, it was nevertheless too much a burden for New York to do anything other than demand each winery that wants to ship to New York residents must have a physical presence in the state.

It also becomes clear from reading the transcript of the arguments that Kathleen Sullivan, the lawyer representing the plaintiffs in Michigan, is a brilliant advocate. Her argument were very coherent in the face of questioning by the justices and she was able to quickly make reference to cases and state laws that had personal connections to the individual justices asking the questions.

At one point, the justices were practically begging for an answer to the question, “Can a state ban shipping for any reason it chooses?” They wanted an answer to this question, I think, because it looked to them that such a position would have to be defended by the states if the justices could ever rule in the states’ favor…simply because the justices saw no valid rationale for the current discrimination that passed the tests that have been laid down over the years of 21st amendment jurisprudence that would allow them to discriminate.

There was a good deal of joking around during the arguments. You got the impression that the Justices found it amusing that a case with constitutional consequences could get to them and be about wine too. Clearly this case didn’t seem of life or death consequence to them.

But now here is something of real import. It is more than plausible, and conceded by the wineries’ advocate, that under the wineries’ argument reciprocal agreements between states could easily be found unconstitutional if discriminatory anti-shipping laws are found unconstitutional. And while it is unlikely that this point would be made boldly in any written decision handed down in favor of wineries, it is most certainly going to be taken up in courts by the wholesalers following a loss at the Supreme Court. It was also conceded by the wineries’ advocates that it would be perfectly constitutional for states to outlaw direct shipping altogether in response to a Supreme Court decision that strikes down discriminatory anti-shipping laws.

I believe the Supreme Court will find this case in favor of the wineries. But I fear, too, that could lead to all sorts of ugliness.

I recommend anyone with a keen interest in this case read the transcript from the oral arguments. (pdf) It is long. But it is a fascinating read.

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