The Supreme Court is for Sissies

Gittings Photography

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.


14 Responses

  1. Keith Wollenberg - May 11, 2020

    Marc’s analysis strikes me as spot on. I find his thought that this erroneous line of analysis may persist for a decade discouraging. Here is hoping for an en banc hearing. Hope that appeal brief is compelling.

  2. VVP - May 12, 2020

    In this case Lebamoff & Co. want: 1) sell and distribute wine directly to Michigan consumers, and 2) obtain licenses and engage in their occupations in Michigan.

    Lebamoff & Co. clearly want to obtain licenses in Michigan, but not to play by Michigan’s rule.

    What do you see here related to Supreme Court opinions about 21st Amendment or Commerce Clause? So far we see none.

  3. Ben - May 12, 2020

    Sorini represents middlemen. His analysis will always be biased.

  4. Tom Wark - May 12, 2020


    You can do better than simple ad hominem arguments. Logical fallacies like that only make you look biased and silly.


  5. Ben - May 12, 2020

    O.K., O.K. he represents suppliers of non-beverage alcohol. It is different industry, Tom. Lawyers usually biased and silly, and it looks ugly when their opinions are based on fake news from incompetent journalists.

  6. Tom Wark - May 12, 2020


    Marc Sorini is a veteran beverage alcohol attorney. But even if he wasn’t, your statement is nonsensical. Moreover, you continue to offer up logical fallacies. If you think Mr. Sorini’s analysis is incorrect, then say why. If you think there is incorrect news involved, then say so. If you think some journalists are incompetent then say who and why.

  7. Keith Wollenberg - May 12, 2020

    But lazy ad hominem attacks are do much less work than thoughtful, careful analysis. And this is the Internet…

  8. Jeremiah S. - May 13, 2020

    It is unbearable shame and disgrace for such a veteran beverage alcohol attorney to write that a retailer in the three-tier regulatory system ships direct-to-consumer. Unbelievable!

  9. Ben - May 13, 2020

    43 email conversations with Alex gave me pretty clear picture on Lebamoff cases. The core part of them is – Doust wants a license but states would not give him one. The simple logic tells us that if a state requires physical presence, then a retailer must have one. Once licensed, it becomes the part of that state regulatory system and must follow its requirements. There is no interstate commerce involved and Commerce Clause can continue to dorm. The 21st Amendment will be enforced over any attempt of that retailer to bring alcohol into the state in violation of state law. I also must admit that in three-tier regulatory system retailer is not a part of DtC. This is why Sorini’s analysis is incorrect.

  10. Tom Wark - May 13, 2020


    You are entirely too short for this ride.

    Also, why hide your name or affiliation by using anonymizers?

  11. Ben - May 13, 2020

    Oh! Are you spying on your visitors? That’s not good, Tom.

  12. Ben - May 13, 2020

    Let me make you even shorter then me for this stupid ride. According to 18 USCS § 921 the term “interstate commerce” includes commerce between any place in a State and any place outside of that State, but such term does not include commerce between places within the same State but through any place outside of that State.

    If you do not understand how this applies to Lebamoff cases, I will ask Elon Musk to twit you. 🙂

  13. Tom Wark - May 13, 2020

    Just you, “Ben”.you are the only one who comments here who uses multiple names and feels the need to use an anonymous proxy server. You are also the only one who engages in ad hominem attacks. So Yeah, I spy on you.

  14. Ben - May 13, 2020

    Truth hurts, isn’t it? Nobody likes the truth. I will continue to use anonymous proxy for the only reason not to be hurt by those who doesn’t like the truth, but possess the power. On the other end I am not aware that I use multiple names. It is not that often I comment your posts. Only when I see mismatch with the truth. Leave this paranoia alone.

Leave a Reply