Veteran Supreme Court advocates Shay Dvoretzky of Jones Day and Carter Phillips of Sidley Austin are up at the high court podium this morning in a case close to the hearts of wine-loving consumers and wine-selling retailers. The justices will hear arguments on whether Tennessee's residency requirements for retail liquor licenses are constitutional. Plus: Check out a snippet from our interview with the author of a fascinating book about justices' alcohol-related rulings and drinking habits. Thanks for reading Supreme Court. Comments and tips are always welcome at [email protected] and [email protected].

 

But Will the Arguments Be Dry?

 

The justices this morning hear one of the term's higher-profile cases—Tennessee Wine & Spirits Retailers Association v. Blair, a constitutional hybrid of the Twenty-First Amendment, commerce clause and privileges and immunities clause, all bottled in a challenge to Tennessee's residency requirements for retail liquor licenses. The state requires anyone who wants a retail liquor license to have resided in the state for at least two years.

Jones Day partner Shay Dvoretzky, representing the retailers association, makes his 10th high court argument this month which is his third this term and his second in just over a week. He gets a boost from Illinois Solicitor General David Franklin, representing 35 states and the District of Columbia. Franklin argued in last term's big union fee case, Janus v. AFSCME and makes his second high court argument this morning.

Rounding out the morning's advocates is veteran Carter Phillips of Sidley Austin with 85 appearances to his name. Phillips, representing independent retailer Total Wine Spirits Beer & More, is defending the decision of a divided U.S. Court of Appeals for the Sixth Circuit panel which struck down the two-year residency requirement because it discriminated against out-of-state residents in violation of the dormant commerce clause.

Phillips also will be arguing on behalf of Doug and Mary Ketchum, former Utah residents who ran into the residency requirement when they sought to open a store in Memphis. The Ketchums are clients of the Institute for Justice, and it's the group's second this term. The first was the excessive fines clause challenge Timbs v. Indiana.

Not surprisingly for a case with national implications for commerce and consumers, amicus briefs have flowed like a tapped oak barrel of aged cabernet. Here is a brief look at a few of the nearly two dozen.

Tennessee Wine & Spirits Retailers Association…

>> National Conference of State Legislatures Richard Simpson, Wiley Rein: The text and history of the Twenty-first Amendment demonstrate that States should be free to regulate alcohol with minimal, if any, limitations imposed by the dormant Commerce Clause.

>> Illinois, 35 states, D.C. Illinois Solicitor General David Franklin: States' interests include enforcing their liquor laws, inspecting premises and records, and holding retailers accountable for state law violations.

>> Wine & Spirit Wholesalers of America Miguel Estrada, Gibson, Dunn & Crutcher: Residency requirements “advance legitimate Twenty-first Amendment interests in temperance, tax collection, and orderly market conditions.”

Amicus briefs also were filed by Baker Botts's Scott Keller (American Beverage Licensees); Gupta Wessler's Rachel Bloomekatz (National Alcohol Beverage Control Association), and John Neiman Jr., Birmingham's Maynard Cooper & Gale (Center for Alocohl Policy), among others.

…And for Total Wine

>> National Association of Wine Retailers Kirkland & Ellis's Paul Clement: If residency requirements are upheld, “states will have free rein to close their borders to out-of-state retailers and the diverse array of wine that they offer consumers, no matter how blatantly protectionist the motives.”

>> Law & Economics Scholars Baker & Hostetler's Andrew Grossman: “Economic analysis confirms that Tennessee's residency requirements are exactly the kind of protectionist measure that the dormant Commerce Clause forbids.”

>> Cato Institute Cato's Ilya Shapiro: “The commerce and privileges and immunities clauses mutually reinforce the constitutional norm that the states are forbidden from discriminating against out-of-state residents in interstate commerce.”

Other amicus filers include: Kelsi Corkran, Orrick, Herrington & Sutcliffe (Retail Litigation center) and King & Spalding's Jeremy Bylund (Law Professors).

 

On the Justices' Drinking Habits…

 

The case of Tennessee Wine and Spirits Retailers Association v. Blair, set for argument today, gives the court and the public the chance to revisit the Twenty-First Amendment and the country's ambivalence toward alcohol. As one brief stated, alcohol is “both widely enjoyed and dangerously misused. What do you do with something like that?”

A fascinating new book charts that long history of ambiguity and matches it up—from the Marshall Court to the Roberts Court—with 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. Here's what Maveety told us about how she thinks the Tennessee case might turn 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/free market grounds.”

>> We'll post a fuller Q&A online today exploring the wine savviness of the current court and other issues.

 

Supreme Court Headlines: What We're Reading

 

>> In a rare unanimous win for workers in an arbitration case, the U.S. Supreme Court on Tuesday, led by Justice Neil Gorsuch, ruled that a court should decide whether an exception to the federal arbitration law applies before arbitration can proceed. [NLJ]

>> “Time is short but here's how Supreme Court could have last word on 2020 census.” Alison Frankel games out possible scenarios following a New York judge's ruling Tuesday. [Reuters]

>> The 5-4 decision Tuesday in Stokeling v. United States reflected an unusual alignment of the justices. Justice Clarence Thomas, writing for the majority, was joined by Justices Samuel Alito Jr., Neil Gorsuch, Brett Kavanaugh and, from the left side of the bench, Stephen Breyer. [NLJ]

>> Oracle America Inc. lost its appointments clause challenge to a pending U.S. Labor Department pay-discrimination case. The company's lawyers at Orrick, Herrington & Sutcliffe mounted a challenge following the court's ruling last term in Lucia v. SEC. [NLJ]

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