Recalling Justice Ginsburg as a Champion of the Wine Industry
Justice Ruth Bader Ginsburg will not be remembered or revered for her 21st Amendment or Commerce Clause jurisprudence. Nevertheless, it’s true that Justice Ginsburg provided reliable support for the view that the 21st Amendment to the Constitution (ending Prohibition) does not give the states unlimited power to regulate alcohol sales and distribution in their jurisdictions. Rather, Justice Ginsburg embraced an interpretation of the Constitution that has led to a radical re-imagining of the role of state regulation of alcohol.
In 2005, Justice Ginsburg was a key vote in the Granholm v Heald Supreme Court decision. That decision, which held states did not have the power under the Constitution to discriminate against interstate alcohol commerce via protectionist state laws, led to the explosion in direct-to-consumer wine shipments that has defined the previous decade. It was a 5-4 decision. It’s hard to imagine what the wine industry would look like today had Justice Ginsburg instead sided with the antediluvian contingent of the court that interpreted the 21st Amendment as a grant to the states of extraordinary power—including the power to pass protectionist, anti-shipping laws.
In Granholm v Heald, Ginsburg joined Justices Anthony Kennedy, Stephen Bryer, Antonin Scalia, David Souter as one of the five Supreme Court votes that changes the wine industry.
Justice Ginsburg again was part of an enlightened free-trade cabal on the Supreme Court when, in 2019, she joined six other justices in Tennessee Wine v Thomas that reiterated the principle that the 21st Amendment does not grant a state the power to pass protectionist alcohol laws.
What comes next in the battle to free up commerce in alcohol is hard to say other than that it won’t include one of its important champions. However, I leave you with this little anecdote concerning Justice Ginsburg and wine that I rather like.
At President Obama’s 2015 State of the Union address, Justice Ginsburg was famously caught napping in her seat between justices Breyer and Kennedy. Later, explaining herself, she admitted she “wasn’t 100 percent sober” and related that prior to the address at a very nice dinner she drank a little too much Opus One, which was brought to the table by Justice Kennedy. I can only imagine how a couple glasses of 14+% alcohol wine would do to someone with her tiny frame.
The country has lost another champion for justice.