The case of Tennessee Wine and Spirits Retailers Association v. Blair, set for argument before the U.S. Supreme Court today, gives the court and the public the chance to revisit the 21st Amendment and the country's ambivalence toward alcohol.

As one brief stated it, alcohol is “both widely enjoyed and dangerously misused. What do you do with something like that?”

A fascinating new book published in December charts that long history of ambiguity and matches it up—from the Marshall Court to the Roberts Court—to the Supreme Court's jurisprudence and drinking habits.

“Glass and Gavel: The U.S. Supreme Court and Alcohol“ is by Tulane University political scientist and Supreme Court scholar Nancy Maveety. With the Tennessee case looming, we interviewed Maveety. Some excerpts, edited for length and clarity, follow.

NLJ: What's your quick summary of the book?

Maveety: “Glass and Gavel” is the story of alcohol in American life and law, a cocktail-by-cocktail history of the eras of the Supreme Court, and its alcohol-related decisions.

You describe the Roberts Era as “retro.” Why do you view it that way?

Two reasons. First, the period begins the cocktail renaissance of the craft cocktail movement, with the restoration of classic cocktails and their drinking to the culture of beverage alcohol use. Things “retro” with respect to cocktails have become very cool. The second reason is because of its jurisprudence on the regulation of alcohol-related behaviors. For example, its decisions on drunk driving up through 2016 display the more critical, contemporary attitude toward heavy drinking and its social costs, an attitude that seems reminiscent of earlier, pro-temperance feelings and policies.

How do you see the Tennessee wine case turning out?

It's a bit of a tough one to call, because its implications could be quite broad, particularly for internet-based wine sales. At first blush, the case seems quite straightforward: it's about a state law that creates a regime of commercial protectionism for brick-and-mortar liquor stores owned by in-state residents. [Briefs invoking the Privileges and Immunity Clause] could appeal to Justice Thomas and some of the other GOP-appointed justices, and they could create a weird coalition to invalidate the Tennessee law by joining the four liberals and possibly the chief justice also invalidating, but on dormant commerce clause or free market grounds.

You describe the 2005 opinion in “Granholm v. Heald,” a precursor to the Tennessee case, as a sign that the Supreme Court views wine and alcohol as a commodity like any other, not a societal problem. Do you think the court, or society, has changed since then?

The terminology that the Granholm majority used was “an ordinary article of commerce.” This evoked the attitude of the pre-Prohibition period, favoring a customer's “right to receive” a shipment of alcohol. And back then, same as today, it came down to national protection of free and unimpeded interstate commerce, even against a “dry” state's desire to prevent the sale or consumption of beverage alcohol within its borders. As long as alcohol was considered a legal commodity, it was part of the stream of commerce among the states.

Antonin Scalia, 2013. Credit: Diego M. Radzinschi / NLJ

Chief Justice Warren Burger was a self-described wine connoisseur, and the late Justice Antonin Scalia savored his Montepulciano red wine. What is your assessment of the wine savviness of the current court?

I assign to the Roberts Court the totemic alcoholic beverage of red wine, based on its popularity among some of the personnel on the bench. Not only Justice Scalia, but Justice Kennedy was also a great red wine drinker, known for bringing the esteemed California vintage Opus One to the court's pre-State of the Union dinners together. One of these was the famous occasion when Justice Ginsburg had one glass too many and dozed during Obama's speech. Roberts himself takes only a glass of wine from time to time, and Justice Sotomayor is diabetic, a condition that may call for moderation of alcohol intake. I don't have any “intelligence” on the wine appreciation of some of the other justices.

Chief Justice William Rehnquist favored Miller Lite. And now we have Justice Kavanaugh, whose statement “I like beer” during his confirmation hearing won't soon be forgotten. What do you make of all that?

I think if we look at Kavanaugh's drinking behaviors, back when he was in high school and college, it was a time of greater indulgence—and overindulgence. Today's beer drinking is more about savoring craft beer and lionizing certain microbreweries and their creative formulations. I don't know Kavanaugh's brand, but whatever beer/ale/lager he prefers, I'll bet he'll be mindful of the optics of his being pictured enjoying a brew, at least for the time being.

Do you like beer?

I do like beer. Just not ultra-hoppy IPA, which seems to dominate today's craft beer market.

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