Thoughts on the “Wine Cases”: Granholm v. Heald

The Supreme Court ruled today on the so-called "Wine Cases," consolidated under Granholm v. Heald.   In the majority opinion, Justice Kennedy ruled (in what seems to be emerging as "his style") that the 21st Amendment does not override the "dormant Commerce Clause" when the two conflict, "as they do here."  The latter statement refers to the principle that the Commerce Clause implies that a state may not pass laws which give discriminatory preferences toward their own producers, and materially discourage commerce from other states. 

As Lyle Denniston at SCOTUSblog comments:

Justice Kennedy’s opinion tartly reminded the states that the Court, "time and again," had ruled that, "in all but the narrowest circumstances, state laws violate the Commerce Clause if they mandate differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter."

This is really the essence of the opinion, although this view is not shared by the four-justice minority.   In particular, O’Connor reminded the Court of the specter of "demon rum," and Stevens traced the majority’s opinion to a moral stance towards alcohol which has clearly shifted since the generations that saw Prohibition as necessary for public morality and (more dubiously) safety.   These comments seem dreadfully anachronistic, considering that (in general) we’re not talking about preventing the shipment of fortified apple-jack and Ripple, but luxury products that are sold to freely consenting adults (after all, what 16 year old is trying to order cases of wine from out-of-state for friday’s night’s party?  Tell everyone about the Burgundy kegger this weekend!).

The impact of today’s ruling will be anybody’s guess, however.  As many online have noted, the ruling can be read narrowly or broadly; narrowly,  Granholm will force states to abandon discriminatory alcohol shipment laws, and if they wish to prevent out-of-state shipping they’ll have to prohibit in-state shipment as well.  We can well imagine that some of the currently "strict" wine shipment states will take this path, especially under the influence of lobbyists for regional distributorships which today form state-boundary "natural monopolies," and a currently fashionable  overeagerness to appear strict on issues of public morality.   We can also imagine that other states will not be able to get a complete ban on wine shipment past their citizenry, and that wine shipment will become freer in some cases. 

But little of this may affect wine collectors interested in wines from outside the United States.  Granholm speaks of wineries, not retailers.  One’s ability to order Bordeaux from an out-of-state retailer and have it shipped to one’s home or office will depend entirely upon how individual states attempt to reconcile their shipping laws with Granholm:  those that decide to liberalize their shipping and avoid the "complete" clampdown may become more amenable to shipping overall; the stricter states will likely continue to be lacunae on the wine collector’s map of hospitable places to live. 

Justice Kennedy, as usual, continues to craft opinions in ways that are intended to maximize liberty, even if the implementation will be fraught with local politics in this case.  For that we can be grateful.  One wonders, however, what concerns O’Connor and Stevens really have, at root.  It’s possible to be afraid of the social impact of crack cocaine, or in days gone by the gin-soaked underclass of Johnson’s London. 

But can we really imagine the social harm caused by Demon Merlot, and are we really worried by the specter of people wandering the streets with bottles of Gevrey-Chambertin discreetly tucked into paper bags?

UPDATE:

One state where Granholm will have no immediate impact appears to be Tennessee, which already prohibits both in-state and out-of-state shipment of wine to consumers.

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