Wine and the Nominee to the U.S. Supreme Court
How interesting that the Granholm v. Heald Supreme Court decision of 2005 will play a small role in the confirmation process of Justice Sonia Sotomayor to Associate Justice of the Supreme Court.
At this point it appears the decision will play only a small role. But here are the details.
In 2004 Justice Sotomayor was part of a three judge panel of the 2nd Circuit Court of Appeals that found New York's discriminatory posture toward out-of-state wine shippers to be constitutional in the case of Swedenburg v. Kelly. This case was eventually appealed and joined to a similar case out of Michigan and heard before the U.S. Supreme Court. In a 5-4 decision, the Supreme Court overruled the Sotomayor panel stating that New York's form of blatant discrimination against out-of-state wine shippers violated the Commerce Clause of the U.S. Constitution.
Clint Bollock, formerly with the Institute For Justice and who was arguing on behalf of wine lovers in the Swedenburg case, has written an article claiming that though Sotomayor's position on the issue was bad for wine lovers, it is nonetheless and example "of a restrained judicial impulse".
Bollock does not elaborate, but it's notable that this decision will be used in other venues to bolster Justice Sotomayor's credentials as a moderate.
Setting aside the Constitutional issues, it's interesting to note that support for discriminatory policies gives indication of one's "moderate" political tendencies. This sounds right to me. After all, if you look at those characters who, in the past, have lobbied and worked for more free trade in wine, you'll see they were often branded as "radicals" looking to upset a decades old apple cart claimed to have served us just fine.
Constitutionally, Sotomayor's Swedenburg decision can be seen as an example of giving deference to the states over the federal government, federalism over statism. In the ultimate Granholm case, the issue came down to balancing the meaning of the Commerce Clause's requirement that the federal government controls interstate commerce and the 21st Amendment that gave the states the right to regulate the sale and distribution of alcohol. Judge Sotomayor sided with the 21st Amendment and the states.
From where I sit, I'd argue that the Swedenburg case demonstrates, perhaps, an anti-free trade bias on the Justice's part. Her decision in Swedenburg curtailed free trade, helped keep trade barriers in place, and favored a narrow understanding of the Founders desire to see interstate commerce uninterrupted by state-imposed roadblocks.
It will be interesting to see if the Swedenburg case comes up in the confirmation hearings and how it might be used. If nothing else, the nomination of Judge Sonia Sotomayor gives the direct shipping issue a small push into the sunlight again.
Really cool post, Tom. After hearing and reading every possible angle, theory, opinion, and historical fact on the capable, but controversial (when are they not?) Supreme Court judicial nominee Sotomayor, it’s neat to read about her relationship to the wine industry.
I’ve read much about Judge Sotomayor’s personal life, court experiences and political leanings in the past week. It’s interesting to read about how her judicial opinions and rulings have affected the wine industry and to ponder the possibility that her potential confirmation may or may not affect the direct wine shipping issue permanently.
Wish you’d called up “Washington Journal” on C-SPAN this morning with this information. You would have added a unique element to the discussion on Sotomayor.
Tom,
I believe what is meant by ‘moderate’ in this case, is a judge unwilling to break with precedent, which is what an activist judge does readily.
As much as you may not like it, the Granholm decision was narrow and did little to address the inherent conflict between the 21st Amendment and the Dormant Commerce Clause. In fact, Kennedy went out of his way to issue a statement that claimed that alcohol is a special product that does not necessarily warrant the same Commerce Clause protection as the rest of the legal products in this country.
I think it’s crazy to worry about Sotomayor’s position concerning wine–the present court without her is not going to hear, let alone overturn the basic lay of the land in the 21st Amendment, that the states have a wide berth with regard to regulating alcohol.
Thomas,
I’m not worried. Just intrigued.
Tom,
I was being general with the ‘worry’ comment. Have seen indication that some wine people seem worried.
My worry is that we’ll never get the 21st Amendment amended…
That 21st amendment… a sop to states to insure the end of prohibition. Why is it that creating the best long term policy is so
monumentally difficult in America?
What seems to happen repeatedly is that people without genuine extensive knowledge of the actual subject before the court, and all it’s aspects, permutations and interests, and their full implications, make the far reaching and long lasting decisions.
Justice, and the fundamental principles of our Country end up not served, and an indefensible, dysfunctional construct becomes entrenched.
As far as this nominee goes, I’m not particularly enthusiastic because the political calculations that shaped the nomination are
fairly obvious and not my priority, but this decision is not in and of itself enough to determine my opinion on the nomination.
“Why is it that creating the best long term policy is so
monumentally difficult in America?”
Mainly because policy isn’t always created with the ‘best’ in mind; rather, it’s often created to serve the most vocal or most powerful interests.
Thomas should have linked to the Wikipedia article on the Dormant Commerce Clause. It reveals many intricacies and nuances of law which may permanently hinder the elimination of the three-tier system: http://en.wikipedia.org/wiki/Dormant_Commerce_Clause
How interesting that the Granholm v. Heald Supreme Court decision of 2005 will play a small role in the confirmation process of Justice Sonia Sotomayor to Associate Justice of the Supreme Court.At this point it appears the decision will play only a small role.
Justice Sotomayor hugged her mother and then shook the hands of several other people in the room. She made no statement.