The Supreme Court is for Sissies
A funny thing happened on the way to federal courts. The Sixth Circuit Court of Appeals decided to ignore the Supreme Court exists.
At least, this seems to be the opinion of long-time beverage alcohol attorney and court watcher Marc Sorini, who recently wrote an analysis of the Lebamoff v Whitmer case in the Sixth Circuit Court of Appeals which overturned a decision of a lower court and allowed Michigan’s discriminatory retailer wine shipping ban to stand. As you may recall, Michigan allows its own wine retailers to ship wine to Michiganders, but bars out-of-state retailers from doing the same.
Sorini’s analysis of the case was both informative and amusing. Perhaps better than anyone else watching alcohol lawsuits, Sorini is able to eviscerate a decision, while being exceedingly polite:
The Sixth Circuit’s opinion in Lebamoff appears to substantially depart from recent Supreme Court teachings on the interplay of the “dormant” Commerce Clause and the 21st Amendment in several ways. Most surprisingly, Lebamoff does not even inquire about the evidence, or lack thereof, showing that the challenged law advances legitimate public health or safety interests. The Lebamoff opinion asserts that case law identifies certain state alcohol laws, including those establishing and maintaining a three-tier system, as per se legitimate and therefore protected from Commerce Clause challenge. In doing so, Lebamoff appears to revive in a new incarnation the position that state alcohol laws regulating wholesalers and retailers are immune from Commerce Clause scrutiny—a position emphatically rejected in TWSRA….Even if, as seems likely, the Lebamoff opinion stands for some period of time, the faithfulness of its analysis to the Supreme Court’s 21st Amendment jurisprudence is open to significant questions.”
In case Mr Sorini’s analysis needs translating, allow me: The Sixth Circuit appears to have completely ignored the Supreme Court. This usually turns out poorly for the future of the decision.
The attorneys advocating on behalf of the out-of-state retailers and Michigan consumers have applied for an en banc hearing in which the entire collection of judges sitting on the Sixth Circuit Court of Appeals will hear the case, rather than just the three-judge panel who originally heard the case and chose to ignore the Supreme Court. We will wait and see what happens here.