The Supreme Court has only two more weeks this term and us liquor folks are awaiting anxiously a final decision. The conventional wisdom is the longer it takes an opinion to come out, the more groundbreaking it will become.

In liquor circles we are not only interested in the opinion but also who will be its author.


Granholm will still remain good law

I believe along with many others there is very little chance that Granholm will be overturned. Justice Thomas’ view that the Dormant Commerce Clause is not a valid exercise of judicial power will not become part of the majority opinion. Hence, the strongest viewpoint against the Commerce Clause will not be the voice of the majority.


Who will write the opinion?

I think the Court will rule against the Tennessee law; the question becomes how broad is the ruling? Does it strike down the residency requirements and limit the decision to the facts in front of it, or does it make a broad statement about economic discrimination against out-of-state retailers?

Obviously, it will come down to who writes the opinion. If the Chief Justice is in the majority, he will decide who writes the opinion. If it is the Chief Justice, we can expect a very narrowly written opinion.

But if the Chief Justice does not write the opinion, then who will he assign it to? If he is in the minority, then who does Justice Ginsburg assign it to? I assume based on Granholm that Justice Ginsburg will rule against the Tennessee law.

Trying to predict who is the most likely candidate to write the opinion is not a perfect science and even a resurrected Nostradamus would have a hard time predicting the candidate.

However, unlike Nostradamus making predictions thousands of years ago, we have the benefit of SCOTUS blog stats and Supreme Court opinions.

What becomes glaringly obvious is that Justice Samuel Alito has written two opinions according to the SCOTUS Blog stats (The SCOTUS Blog stats go up until April) and recently published Supreme Court opinions provide the data for the rest of the months.  [1]

Whereas last year he wrote the same amount of majority opinions as four other justices,[2] this term he is trailing his colleagues by a decent margin.

With two weeks remaining it would seem that Sam has some catching up to do, and statistically he has the best odds at writing the majority opinion.

I remember back to the days of Heller where my friend Darren and I were trying to predict the outcome of Heller and who would author the opinion. Combing through the stats and reading the tea leaves, we predicted a Scalia opinion broadly in favor of the 2nd Amendment. The stats showed that Scalia was behind in the number of majority opinions and assigning this would allow him to be at the same level as his colleagues.

Now this situation differs in that we are two weeks out instead of one, so there are different variables. If the opinion is delayed another week and Alito is still at his number, there is a very high probability that he writes the opinion.

Nevertheless, if there are Vegas odds on this issue, Alito is the front runner to write the opinion!


What does this mean?

An Alito opinion would widely condemn economic protectionism and economic discrimination and could be the ground breaking opinion that opens up the retailer shipping market.

During oral arguments Alito made the point that he believed the 21st Amendment was setup to allow the states to regulate public health and safety and not setup to allow economic protectionism. Specifically, he stated:

“And I thought the purpose of the Twenty-First Amendment and Section 2 of the Twenty-First Amendment was to say this is a determination, the public health and safety determination is not going to be made on the national level. It’s going to be made by the states. But none of that seems to me to have anything to do with economic protectionism.”

Alito clearly believes that the 21st Amendment should not be utilized for economic discrimination and to usurp the Commerce Clause. It seems he believes the 21st Amendment’s powers are limited to allowing the state to make decisions pertaining to health and safety of the alcoholic liquor marketplace.

Don’t be surprised if Alito obliterates the argument that the 21st Amendment allows for economic discrimination. With Alito taking this path, it would become very difficult if not impossible for the states to keep out-of-state retailers from doing business in their state.