Wine Win Likely at the Supreme Court

The US Supreme Court has already decided the important wine case it heard in January, which has the potential to reshape our country's alcohol laws. We won't learn what they decided for a few months – the best guess is June – but I believe I have some insight into how they will rule.

Tennessee Wine & Spirits Retailers Association vs. Blair is an important case: it could allow you many more options on how to order wine online. (A primer for the case is here.)

I'm pretty sure the Court will rule in favor of Total Wine and the Ketchum family. I just don't see how there are five votes to take these companies' liquor licenses away.

It's possible I'm wrong. I spoke recently with a journalist who watched the last significant wine case before the Supreme Court, the 2005 case of Granholm v Heald that opened most of the country to direct shipping by wineries. The journalist told me, "I thought at the time of the hearing it would be 9-0 for direct shipping but when the verdict came out it was 5-4." But ultimately the justices did decide the way it seemed in the courtroom that they would, and I think that will happen here.

However, I'm not sure how broad the ruling will be, and that matters, because a limited ruling probably would not change the status quo for wine lovers on ordering wine from out-of-state retailers. If you live in Illinois and want to order wine from New York (or vice versa), you want a broad ruling.

First, though, is the pure vote counting. There's no way this ruling goes against Total. I count two strong votes for Total (Justices Brett Kavanaugh, who likes beer, and Samuel Alito, who likes free markets), and two likely votes against Total (Clarence Thomas, certainly, and Neil Gorsuch, probably). That leaves five in the middle.

That means three more justices of five would have to rule against Total for them to lose. Elena Kagan will not; she said in court she wants a narrow ruling and she wants a way to rule for Total. Sonia Sotomayor and Stephen Breyer might be on the fence (a beverage attorney who sat next to me disagrees, saying Sotomayor is a strong pro-Total vote). Ruth Bader Ginsburg voted for winery direct shipping in 2005. To lose, Total would need to lose both John Roberts (who is inscrutable) AND two of Sotomayor, Breyer and Ginsberg. That's hard to imagine, and if it were to become a possibility, I believe Kagan would win back her liberal colleagues by volunteering to write a very narrow decision, which she wants to do anyway.

This is how Supreme Court decisions work: the judges have an informal discussion and take a vote. Whoever is in the middle has the most power – they're like NBA free agents. They can demand that the ruling include their specific concerns before agreeing to join it. Often the justice most in the middle writes the decision for this reason. So it's possible that Kagan or Roberts is right now writing a narrow decision that rewards Total and the Ketchums, and leaves the rest of alcohol law untouched.

But that wasn't why the Court heard this case. The Supreme Court takes only about 1 percent of the cases appealed to it. This one, which is about the conflict between the 21st Amendment (that lets states write their own alcohol laws) and the Commerce Clause (that doesn't let states discriminate against other states' business) isn't a particularly good one because Tennessee's residency law for retailers is so bad that the state itself refused to defend it. The only reason the Supreme Court took this case was to make a broad ruling.

Kavanaugh and Gorsuch clearly want to make a broad ruling. They seem to be coming at it from different sides, but they will argue with their colleagues that if the Court rules only on Tennessee's residency question but not on the larger issue – the 21st Amendment/Commerce Clause conflict – they will have to take up that issue again soon.

That brings me back to the math. If Sotomayor, Breyer and Ginsberg vote together as they usually do, joined unusually in this case by Kavanaugh and Alito, that's a win for Total – and a total win for out-of-state retailers.

But there's also a constituency that could start in the middle. Roberts tends to like narrow decisions, and probably would not like thwarting the will of 35 states, who sent Illinois' attorney general to ask the justices to support Tennessee's nearly indefensible law. He and Kagan could be their own mini narrow-decision block. Breyer expressed doubts in court about going beyond the language of Granholm, which specifically said "producers" and "products" – not retail stores – cannot be discriminated against by other states. Roberts, Kagan and Breyer might be the basis of a narrow-decision block. That's a big start.

A narrow decision would still would be a small victory for out-of-state retailers, because in that case, the vote would probably be 7-2 with Kavanaugh and Alito concurring AND probably writing a much broader concurring decision. That concurring decision wouldn't have the force of law of the majority decision, but it would still be influential as lower courts consider state liquor laws in the near future.

A problem for the justices in last month's hearing was that, though the real issue is wine shipping by out-of-state retailers, none of the attorneys wanted to talk about it. I wish there had been an attorney to represent wine consumers.

And I wish more of the amicus briefs submitted to the court had addressed the hypocrisy of liquor distributors' anti-competition position, as lip-synced by their bought-by-campaign-contributions mouthpieces in state governments.

Whenever liquor laws are debated, distributors tout the dangers of alcohol in order to convince states to give them a local monopoly. Tennessee's laws are hypocrisy in action; you need 12 years of residency in the state to run a wine shop, but anybody at all can sell you multiple shots of vodka at a bar or restaurant. It's not about public intoxication; it's about the 30 percent cut distributors get of every bottle of wine, spirits or beer you buy in a store. Distributors don't care much about restaurant or bar drink sales – where people are more likely to get sloshed and drive home – but they want a firm grip on retail because without it, people will order more wine from outside the state and distributors won't get their 30 percent cut.

Enough of the justices talked about this cynical anti-competitive attitude for me to feel confident Total will win when the ruling comes out. We'll just have to wait and see whether it's a total win for everyone.