I'll Drink To That
The Supreme Court has just released an opinion striking down state laws banning direct sales of wine from other states through the internet. Mark this one as a victory for the free market and open competition.
The 21st Amendment, which repealed Prohibition, also gave states broad powers to regulate alcohol sales. The question was how broad. It's questionable if the precedent will have too much effect on other products, since this amendment only deals with alcohol.
I'm a little worried by the tight 5-4 majority. For those who think justices act predictably, there was an interesting mix. The opinion was written by Kennedy, joined by Breyer, Ginsburg, Scalia and Souter. The dissent was by Thomas, joined by O'Connor, Rehnquist and Stevens.
PS According to Stephen Bainbridge:
"Even casual followers of the Supreme Court will note that this is a VERY unusual lineup. According to the Harvard Law Review's statistical analysis of the Supreme Court's 2003 term (available to Westlaw subscribers), in non-unanimous cases, Stevens and Thomas vote together only 16.4% of the time. Conversely, Scalia and Souter voted together in only 20.4% of non-unanimous cases. In none of the 19 5-4 decisions handed down in the 2003 term did the Justices align as they did in this case (the 5 justice majority consisted of Rehnquist, O'Connor, Scalia, Kennedy, and Thomas in 9 of the 19 cases and of Stevens, O'Connor, Souter, Ginsburg, Breyer in 5.)
"Even more strikingly, out of the 175 5-4 decisions handed down in the ten terms between 1994 and 2003, the Harvard Law Review reports (again available only to Westlaw subscribers) that the Court has never - not once - broken out as it did in this case. Think about that: The 5 justice majority had never voted together in a 5-4 case once in the last 10 years."Read on to discover why Bainbridge believes each justice voted yes or no.
posted by LAGuy @ 10:55 AM
3 Comments:
This was a "negative commerce clause" case, meaning that it speaks only to whether states may do something only in the absence of Congressional regulation.
Put another way, Congress would be free to do things however it wanted to (unless the court were to hold that Congress had no power under the Commerce Clause or other authority, a different decision).
Thomas and Stevens (and the other dissenters) argued that Congress had indeed acted and said such regulations were A-OK. Which is to say, they treated it as a statutory interpretation case.
I'm quite happy with the result, but am uncertain about the quality of it. (It might be fine; I simply don't have enough particular background on the case and legal issues to say one way or the other.) I hope that the majority is right, but I'd be much happier with a stronger result saying even Congress did not have power to impose or authorize this sort of limitation.
To be honest, while I like the result, I'm not thrilled with the reasoning of either side. But then, the problems with interpretation of the commerce clause (not to mention unintended consequences of the 21st Amendment)go so deep it's hard to know where to begin.
You should update the main entry with a link to bainbridge, who recites the statistics about how often the judicial pairings work out in the 5-4 decisions.
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