https://www.youtube.com/watch?v=cMSJoPjIM2c
The Architect of Granholm
In my latest installment of the Granholm at 20 series, I sat down with Professor Alex Tanford. Along with his partner Bob Epstein they took on the winery shipping cases and changed the legal world forever. Alex and I look back on the journey that led to victory in Granholm and its impact on the present and the future.
Irish Liquor Lawyer (ILL): Granholm is now 20 years old, how did this all begin, what made you take on this battle?
Alex Tanford (AT): My friend Russ Bridenbaugh was the wine writer and critic for the Indianapolis Star. Bob Epstein was the former wine writer for the Star. In 1998, as a result of lobbying efforts by the wine wholesalers who feared competition from the merging internet markeplace, the Indiana legislature passed a law making shipping a bottle of wine a felony. Overnight, Russ could not get the samples shipped to him that he depended on for his profession. He went to Bob and they recruited me to assist in challenging the constitutionality of the law.
ILL: Obviously, there is a Circuit split, which caused the court to take the case, but it had to be a rollercoaster of winning and losing cases, were you ever worried that you had lost the issue at the lower courts?
AT: Oddly, we won the first case (Bridenbaugh v. Freeman-Wilson) in the District Court, but the Seventh Circuit reversed and other courts followed as judges read the 21st Amendment broadly to give states virtually unlimited power to regulate alcohol and paid little attention to the nondiscrimination principle. That changed with the Beskind case in the 4th Circuit. Had we lost that, we would have been done.
ILL: Being from Indiana, you were not exactly wine industry insiders, what was the reaction from the wine industry when you began filing these cases?
AT: We got no support initially from the wine industry insiders who feared that litigation would erode the progress they had been making toward a legislative solution.
ILL: The Supreme Court had not granted cert on a liquor case since the 80s, were you shocked when the Supreme Court took the case?
AT: No, but that’s because we were naive about the politics of the cert process. Others with more experience were suprised.
ILL: How did the doubters in the industry react once you were successful at obtaining cert?
AT: Mixed. We got some support, but mostly the insiders wanted to take over the case now that it was before the Court.
ILL: When the case came before the court, unlike the lower courts, you did not argue this case, but picked a different litigator, why and what was the process you went through for picking this person?
The choice of advocate was made by the clients, Ray and Eleanor Heald. It’s not the lawyer’s decision. There was a moot court held before a number of experienced Supreme Court litigators where potential advocates made presentations, including me, Ken Starr and Kathleen Sullivan. The clients listened to the opinions of the experts  and decided on Sullivan, who was well known to the Court.
ILL: It was a tight victory, 5-4, did you have a sense that you would win, or were you sitting on needles and pins?
AT: Both. The game is called “count to 5.” You don’t need 6 votes, and we were pretty sure we had four solid votes plus either O’Connor or Scalia. Scalia was our best best (and was the 5th vote) because he both enjoyed wine and felt very strongly that nondiscrimination was a central constitutional principle.
ILL: What are you most proud of in winning Granholm?
AT: That we did it on a $0 budget and without help from either the wine industry or the common carrier industry.
ILL: The wine retailer shipping cases have not gone the way of Granholm, what do you think the lower courts are getting wrong?
AT: I think everyone assumes that alcohol is an inherently dangerous product that needs strict regulation, and that idea makes it difficult for judges to strike down a law that restricts sales, especially when the AG argues vehemently that it is necessary to protect public health and safety and that a cascade of social ills will happen if the internet market (e.g., Amazon) is opened up.
ILL: You left a great legacy in winning Granholm, how do you want to finish this journey?
AT:  I want to see other lawyers take up the cause so I can retire and travel.