The Supreme Court May Change the Way You Buy Wine

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NED VALOIS
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The Supreme Court May Change the Way You Buy Wine

#1 Post by NED VALOIS » January 13th, 2019, 9:19 pm

By Eric Asimov

Jan. 10, 2019
...The justices will hear oral arguments in a contentious case involving whether consumers can order from out-of-state wine shops. ...



https://www.nytimes.com/2019/01/10/dini ... sales.html

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Matt Snow
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Re: The Supreme Court May Change the Way You Buy Wine

#2 Post by Matt Snow » January 15th, 2019, 3:21 pm

Although I agree with Clement's argument that Granholm should extend to wine retailers, I do not think this case will do so, at least not in the way Asimov anticipates and most consumers would like. After all, the reasoning in Granholm itself (which is about interstate shipping, albeit by wineries not retailers) seemingly is closer to governing the interstate retail shipping question than any reasoning would reasonably be expected to be in a case that addresses limitations on state regulation of brick-and-mortar retailers, as the Tennessee case does. The states that have refused to recognize Granholm as limiting their regulation of interstate retail shipment presumably would maintain the same position in the face of an adverse decision in the Tennessee case. I do not see a change coming until there is litigation specifically addressing interstate retail shipping (or a change in the relative lobbying power of the industry groups in question).

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Neal.Mollen
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Re: The Supreme Court May Change the Way You Buy Wine

#3 Post by Neal.Mollen » January 15th, 2019, 3:52 pm

I don't have to speak; she defends me

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Re: The Supreme Court May Change the Way You Buy Wine

#4 Post by Matt Snow » January 15th, 2019, 5:25 pm

Thanks, Neal. Any view on the likelihood of the case actually changing interstate retail shipping rules?

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D@vid Bu3ker
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Re: The Supreme Court May Change the Way You Buy Wine

#5 Post by D@vid Bu3ker » January 15th, 2019, 5:27 pm

My bet is that it sets everything, even winery shipping, back further.
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Matt Snow
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Re: The Supreme Court May Change the Way You Buy Wine

#6 Post by Matt Snow » January 15th, 2019, 5:40 pm

D@vid Bu3ker wrote:
January 15th, 2019, 5:27 pm
My bet is that it sets everything, even winery shipping, back further.
Maybe. If counting votes on Total Wine's side, Thomas and probably Alito are hopeless and I would not be terribly enthusiastic about getting Gorsuch, or Kavanaugh, which does leave a pretty narrow window for them to win. But I also doubt there's a majority for overruling Granholm, so I'm not so worried about winery shipping. (I don't see Ginsburg or Breyer changing their positions, notwithstanding Ginsburg's loss of her mind in Wayfair, nor do I think Kagan, Roberts, or probably Kavanaugh, are sticking their necks out to overrule. So the retailers' association would have to get Sotomayor and a Kavanaugh who spent a lot of time beating his chest about stare decisis to try to appease folks on abortion.)

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Re: The Supreme Court May Change the Way You Buy Wine

#7 Post by Scott G r u n e r » January 15th, 2019, 9:13 pm

Well we know Kavanaugh likes beer... so maybe...
//Cynic

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T. Melloni
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Re: The Supreme Court May Change the Way You Buy Wine

#8 Post by T. Melloni » January 15th, 2019, 10:34 pm

Oral argument is scheduled for January 16.
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Neal.Mollen
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Re: The Supreme Court May Change the Way You Buy Wine

#9 Post by Neal.Mollen » January 16th, 2019, 4:33 am

Scott G r u n e r wrote:
January 15th, 2019, 9:13 pm
Well we know Kavanaugh likes beer... so maybe...
LOL.

I have no feeling for this. It doesn't plot on the "normal" ideological continuum. And only 2(?) current justices were on the Granholm court. The formalists have a slight tendency towards state's rights and against expansion of the dormant commerce clause, but also tend to be free market thinkers. So I really don't know. It will be interesting to see.
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Jason T
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Re: The Supreme Court May Change the Way You Buy Wine

#10 Post by Jason T » January 16th, 2019, 5:30 am

I’m hoping that Neal’s comment about free-market thinking is what carries the day. But I fear that David’s comment about everything getting more restrictive, including winery shipping, is what we end up with.
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Re: The Supreme Court May Change the Way You Buy Wine

#11 Post by Mich@el Ch@ng » January 16th, 2019, 5:43 am

I also wonder what role the big corporations will have in pushing for this. I imagine amazon has some feelings about this.
Neal.Mollen wrote:
January 16th, 2019, 4:33 am
Scott G r u n e r wrote:
January 15th, 2019, 9:13 pm
Well we know Kavanaugh likes beer... so maybe...
LOL.

I have no feeling for this. It doesn't plot on the "normal" ideological continuum. And only 2(?) current justices were on the Granholm court. The formalists have a slight tendency towards state's rights and against expansion of the dormant commerce clause, but also tend to be free market thinkers. So I really don't know. It will be interesting to see.

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Re: The Supreme Court May Change the Way You Buy Wine

#12 Post by Neal.Mollen » January 16th, 2019, 5:46 am

Mich@el Ch@ng wrote:
January 16th, 2019, 5:43 am
I also wonder what role the big corporations will have in pushing for this. I imagine amazon has some feelings about this.
Neal.Mollen wrote:
January 16th, 2019, 4:33 am
Scott G r u n e r wrote:
January 15th, 2019, 9:13 pm
Well we know Kavanaugh likes beer... so maybe...
LOL.

I have no feeling for this. It doesn't plot on the "normal" ideological continuum. And only 2(?) current justices were on the Granholm court. The formalists have a slight tendency towards state's rights and against expansion of the dormant commerce clause, but also tend to be free market thinkers. So I really don't know. It will be interesting to see.
On the court's decision? None.
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Matt Snow
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Re: The Supreme Court May Change the Way You Buy Wine

#13 Post by Matt Snow » January 16th, 2019, 7:45 am

Well, the beer wholesalers have predictably come down on the side of the regulation, to the extent Kavanaugh cares about that. :)

The beer and wine wholesalers and their pet nonprofits are the primary business interests represented in the amicus briefs, which as Neal observes are generally the only way outside interests have an influence on these decisions. (There is also something called KBHC Partners II, Ltd., which oddly does not say what it is or why it is interested in the case in its amicus statement.)

There are 3 current members of the court who were there for Granholm: Thomas, who consistent with his view that the Commerce Clause has no negative aspect dissented in Granholm and will not subscribe to an opinion here that strikes down the regulation on Commerce Clause grounds; Breyer, who is generally a reliable vote against discrimination under the Commerce Clause, and who agreed in Granholm that it limited the 21st Amendment's general grant to the states of regulatory authority over alcoholic beverages; and Ginsburg, who voted with the majority in Granholm but has been less predictable in other Commerce Clause cases, particularly in the tax area.

One aspect of the case of which I had not been aware before scanning the briefs of the amici this morning is that the second respondent (the family that got the Total Wines franchise and was going to operate the store) is arguing that the residency requirement should be held unconstitutional on an alternative ground, under the right to travel protected by the 14th Amendment Privileges & Immunities Clause. An amicus law professor is raising a parallel argument under the Article IV Privileges & Immunities Clause. Those arguments might provide a basis to affirm for some justices who are dormant Commerce Clause skeptics or who have a more permissive view of the level of discrimination permitted by the 21st Amendment.

-- Matt

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Re: The Supreme Court May Change the Way You Buy Wine

#14 Post by Scott G r u n e r » January 16th, 2019, 7:54 am

I think it would be obvious that the wholesalers (beer, wine, spirits) will always fight against the consumer and the free market. Regulations and direct shipping restrictions built their mansions.
//Cynic

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