In Vino Veritas? The Supreme Court's Decision on Interstate Wine Shipment Creates Some Odd Bedfellows Among the Justices

By MICHAEL C. DORF
Monday, May. 23, 2005

Last week, in a 5-4 decision, the Supreme Court struck down laws from Michigan and New York that prohibited out-of-state wineries from selling directly to consumers, while permitting in-state wineries to do so.

The decision in the case of Granholm v. Heald was mostly a victory for e-commerce. Its practical import is clear: American wine consumers will now be able to save money on out-of-state wines by eliminating the middleman and buying directly--over the Internet, via the phone, or otherwise. They will also now have access to relatively rare vintages that could not economically be shipped via wholesalers and retailers, but can be sold at a profit directly.

That is surely good news for wine drinkers, not to mention the state of California.

But while the holding of Heald is clear, the explanation for how the individual Justices arrived at their respective conclusions is not. The voting pattern defies categorization along the conventional ideological or jurisprudential spectra of views.

And as I explain below, that fact may be what makes this case so intoxicating.

How the State Laws Worked Before They Were Struck Down

Although their respective regulatory schemes worked somewhat differently, both Michigan and New York had effectively prohibited most direct sales by out-of-state wineries while permitting such sales from in-state wineries.

Thus, suppose a Detroit wine connoisseur wanted to purchase a bottle of chardonnay over the Internet. He could purchase it directly from a winery on the shore of Lake Michigan. But he unless the seller was willing to break the law, he could not purchase it directly from a California winery.

The Dormant Commerce Clause Issue

Nearly everyone agrees that if the product in question had been something other than wine--cheese, for example--the Supreme Court would have been unanimous in striking down regulatory schemes like those of Michigan and New York.

The Constitution does not in so many words forbid states from enacting protectionist tariffs against products from other states. Yet the Supreme Court has long found such a prohibition to be implicit in the grant to Congress in Article I, Section 8 of the power to regulate interstate commerce.

That affirmative grant of authority to the federal government, the cases say, carries with it a limit on state authority. While the modern cases do not say that Congressional power over interstate commerce excludes all concurrent regulation by the states, they do say that states may not enact laws that discriminate against interstate commerce.

So strong is the policy of national economic integration that even absent Congressional legislation, the mere possibility of such legislation is taken to preclude discriminatory legislation by the states. In other words, even when the power to regulate interstate commerce lies dormant, it limits state regulation. Thus, the "negative" effect of the grant to Congress of the power to regulate interstate commerce is sometimes termed the "dormant commerce clause."

Congressional Power to Lift the Restrictions of the Dormant Commerce Clause

The dormant commerce clause, then, aims at enforcing a rule--no protectionism--that the Court attributes to Congress in the absence of Congressional action.

Accordingly, it stands to reason that where Congress has acted, it is those actions, rather than the Court's imputation to Congress of an intent to act, that are operative. Acts of Congress in effect "awaken" the Commerce Clause from its slumber, thus displacing the dormant commerce clause.

Hence, the cases have long recognized that Congress may authorize state laws--including state discrimination against out-of-state products and services--that would, absent Congressional authorization, violate the dormant Commerce Clause.

Suppose, for example, that Michigan--perhaps fearing competition from nearby Wisconsin--were to ban direct sales of cheese from out-of-state producers, while permitting such sales from within Michigan. The law would clearly violate the dormant commerce clause. However, if Congress enacted a federal statute specifically authorizing states to pass such laws, then the Michigan law would be valid.

In Heald, Michigan and New York argued that, with respect to wine, Congress had acted to authorize interstate discrimination. It did so, they said, in the federal Webb-Kenyon Act, which was first enacted in 1917, was re-enacted in identical wording in 1935, and is still on the books to this day.

The Webb-Kenyon Act prohibits all manner of interstate "shipment or transportation" of alcoholic beverages "in violation of any law of [any] State, Territory, or District of the United States." This language in the Act meant--Michigan and New York argued--that Congress had put its imprimatur on state laws barring direct interstate wine sales. Thus, in this view, there was no occasion to apply the dormant commerce clause doctrines.

The four dissenting Justices agreed. But the five-Justice majority did not. They thought the history of the Act required a different result.

For instance, citing the history of the Webb-Kenyon Act, Justice Anthony Kennedy's lead opinion said that the Act's purpose was simply to make clear that state laws that do not discriminate against interstate alcohol shipments were valid.

Early twentieth century dormant commerce clause cases sometimes conferred an affirmative immunity from state regulation--whether discriminatory or evenhanded--on interstate commerce. The Webb-Kenyon Act, the Heald majority said, leveled the playing field.

As used in the statute, the majority opined, "any" state law referred only to any state law that applied equally to both in-state and out-of-state alcohol.

The dissenters disagreed about nearly all of these points, but they were outvoted.

The Constitutional Difference Between Wine and Cheese

But the dissenters also had another argument the majority had to confront: They pointed out that the case involved wine, not cheese, and that, they said, makes a constitutional difference under the Twenty-First Amendment.

The Eighteenth Amendment, which went into effect in 1920, prohibited the manufacture, sale and transportation of alcohol anywhere in the United States. It instituted "Prohibition." But in 1933, it was repealed by the Twenty-First Amendment.

That's familiar American history. But here's the constitutional catch, according to the dissenters: The Twenty-First Amendment does not merely state that the Eighteenth Amendment is void. It also prohibits "transportation or importation" of "intoxicating liquors" into any State "in violation of the laws thereof."

Thus the dissenters argued that, even if the Webb-Kenyon Act does not give effect to state laws governing interstate shipment of liquor, regardless of whether they discriminate against out-of-state producers, it doesn't matter, because the Twenty-First Amendment, separately, has that very same effect.

The language of the Twenty-First Amendment, they argued, makes no exception for discriminatory laws. Therefore, they concluded, it displaces any effect of the dormant commerce clause. An explicit constitutional provision, they contended, trumps an implied one: There was nothing "dormant" about the Twenty-First Amendment itself.

For the Heald majority, however, the Twenty-First Amendment had to be read against the very same background as the Webb-Kenyon Act. Recall that these Justices saw the Act as clarifying that states could enforce their non-discriminatory laws against out-of-staters notwithstanding the robust protection formerly given those out-of-staters under a since-abandoned view of the dormant commerce clause. Unsurprisingly, they also saw the Amendment in these same terms.

In the majority's view, then, the Twenty-First Amendment simply reaffirmed the status quo from before Prohibition--namely, states could apply only non-discriminatory laws to out-of-state producers of alcohol.

The Peculiar Voting Pattern in Heald

Having examined the majority and the dissent, let's look at how the case split the Court.

First, the majority: Justice Kennedy's majority opinion was joined by Justices Scalia, Souter, Ginsburg, and Breyer.

Next, the dissenters: Justice Thomas's dissent was joined by Chief Justice Rehnquist, Justice Stevens, and Justice O'Connor.

Plainly, both contingents included a mix of conservative and liberal justices.

Crass conventional wisdom divides the current Supreme Court into roughly three political camps: (1) Conservatives, consisting of Chief Justice Rehnquist and Justices Scalia and Thomas; (2) moderate Justices O'Connor and Kennedy; and (3) liberal Justices Stevens, Souter, Ginsburg, and Breyer. The division is crass because it greatly oversimplifies, but at least in the most politically contentious cases, this schema is a useful starting point for guessing how particular Justices are likely to vote.

If we rely on this crass conventional wisdom for a moment, we see that the majority in the wine case included one moderate, one conservative, and three liberals. We also see that the dissenters included one moderate, two conservatives, and one liberal.

Plainly, judicial politics did not explain this split. So what did? I'll consider a few hypotheses as to what brought the majority and dissenting Justices, respectively, together.

The Age Hypothesis

One intriguing possibility is age.

In addition to signing onto the dissent written by Justice Thomas, Justice Stevens also penned a separate dissent for himself and Justice O'Connor. Its upshot was that the majority erred by treating alcohol just like any other product. That may be true today, Justice Stevens said, but when the Webb-Kenyon Act and the Twenty-First Amendment went into effect, alcohol was regarded as much more dangerous.

Thus, while most of those who favored repeal of Prohibition recognized that a dry United States had failed as a national policy, they nevertheless wanted to ensure that robust state power remained available to counter the demon rum and other alcoholic beverages.

How did Justice Stevens know that? Because he had lived it. "My understanding (and recollection) of the historical context," he wrote, "reinforces my conviction that the text of [the Twenty-First Amendment] should be broadly and colloquially interpreted." Justice Stevens not only studied the history of the Twenty-First Amendment; he lived it and now recalls it.

Might it be significant that the Court's three oldest Justices all dissented in Heald? Perhaps, but despite what Justice Stevens recalls, this seems implausible.

Justice Stevens, now 85, was a boy of thirteen when the Twenty-First Amendment was ratified in 1933. No doubt he was a precocious child, but how likely is it that he was paying close attention to the debates over the meaning of the precise text of the Twenty-First Amendment?

The age hypothesis is even weaker for Chief Justice Rehnquist, who was nine when the Amendment was adopted, and Justice O'Connor, who was three. And of course, the fourth dissenter, Justice Thomas, is the Court's youngest member.

The Scalia/Thomas Split: Two Avowed "Textualists" Take Different Sides

We might at least explain why Justice Thomas dissented in Heald by reference to his overall jurisprudential philosophy. Justice Thomas is a "textualist." In other words, in cases of statutory and constitutional interpretation, he believes in extracting as much meaning as possible from the language enacted, resolving ambiguities, where they arise, by reference to the public understanding of the words at issue at the time the relevant provision was adopted.

Thus, it is not surprising that in the face of both statutory and constitutional language that contains no stated exception for non-discriminatory state laws, Justice Thomas would treat that language as trumping any evidence that the language had or has a more flexible meaning. In his view, the words of the Act, and of the Amendment, were of primary importance.

But of course Justice Thomas is not the only self-proclaimed textualist on the Supreme Court. Justice Scalia professes the same philosophy. Yet he voted with the majority in Heald. Even more striking, he did so without bothering to write a separate concurrence reconciling that vote with his professed jurisprudential commitments.

The Best Explanation: They Just Disagree

In the end, perhaps the best account of the odd division in the Heald case is the most obvious one: the Justices simply reached different conclusions in this admittedly difficult case.

On the one hand, the dissent was right to point out that the statutory and constitutional language at issue do not obviously lend themselves to a special rule for discriminatory regulations on alcoholic products.

But, on the other hand, the majority was also right to suggest that the most obvious reading of that language might not, all things considered, be the best one. So too, the majority could rely on relatively recent precedents in support of its reading.

The question in Heald thus was a close one under almost any plausible approach to statutory and constitutional interpretation. So perhaps it should not be surprising that the case divided even Justices who broadly share ideological and jurisprudential commitments.

As the Senate appears bent on coming unglued over judicial appointments, Heald stands as a reminder that much of the important work of the courts has almost nothing to do with conventional politics.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.