Updating our report from yesterday on the interstate wine oral arguments before the U.S. Supreme Court, is this story today by Charles Lane of the Washington Post. Some quotes:
The states, backed by wholesalers, say that the 21st Amendment, which repealed Prohibition in 1933, permits such laws. It bars importing alcohol into any state "in violation of the laws thereof."See also this interesting article by Linda Greenhouse of the NY Times, headlined "Justices Pick Apart Ban on Wine Sales From State to State." One example:But Justice Antonin Scalia seemed to reject that assertion when New York State Solicitor Caitlin J. Halligan raised it yesterday, telling her: "I don't think so. I think when you have facial discrimination, the bar's a little higher than that."
Justice Stephen G. Breyer told Michigan's solicitor general, Thomas L. Casey, "there's not a word" in the history of the 21st Amendment to suggest it was "intended to permit discrimination."
And Justice Ruth Bader Ginsburg cited a 1984 decision of the court that struck down a Hawaii tax that applied only to imported alcohol. "One thing is certain," Ginsburg read. "The central purpose of [the 21st Amendment] was not to empower states to favor local liquor industries by erecting barriers to competition."
Perhaps most encouraging for the winemakers and wine drinkers, Justice Sandra Day O'Connor, who dissented from the 1984 ruling, seemed willing to apply it to this case, telling the states' lawyers repeatedly that it "cuts against you."
The justices seemed especially skeptical of the states' assertions that they may treat out-of-state wine differently because it is easier to enforce drinking-age and tax laws against in-state companies -- and that those laws are crucial to limiting the harm caused by excessive drinking. Almost nothing the states' lawyers said in this regard seemed to convince the court.
The justices appeared notably unmoved by the arguments offered by New York and Michigan in defense of laws that prohibit the direct shipment of wine from other states while permitting in-state wineries to ship their products to their customers' homes.Posted by Marcia Oddi at December 8, 2004 07:29 AM