Who Can Really Say?

I didn't mean the last post here, over 2 weeks ago, to itself be an epitaph. I could explain that given the nicer weather, my new full-time job (I'd been a contractor for a few years), the start of the baseball season, cooking on my new gas grill, and a nasty cold in the last week, I'd taken a needed break. Well, I took the break, but mostly just because I felt like it.

The blog juices got flowing today though when I saw the Supreme Court of the United States (SCOTUS) decided the Wine Case. The issue was mightily and exhaustively blogged last August by Todd Zywicki, a Volokh Conspirator (Parts I, II, and III are here. You're on your own for Parts IV through I don't know, something like 15 or more suceeding installments). Essentially, as Zywicki explained, the case was about whether or not States may treat in-state producers of alcoholic beverages more favorably than out-of-state producers. I think we're all pretty used to the idea that WI can't tax out-of-state cheese at twice the rate of in-state cheese. But NY and MI both allowed in-state wineries to sell bottles by mail to in-state buyers while prohibiting out-of-state wineries from doingt the same.

The answer from SCOTUS today was that no, a state can't disfavor the out-of-state producer. According to the decision, while nothing's stopping any state from banning all wine sales, or just sales via the mail, if the state decides to allow sales via the mail it can't favor local producers over those from out-of-state.

If you're interested in further details, stop reading here 'cause that's not what's on my mind. Rather, what interests me is the Court's lineup, a virtual Marvel Teamup, never before seen in recent SCOTUS history. On the side of good (against discriminatory sales) were SuperHero Conservative Justices Kennedy and Scalia, joined by SuperHero Liberal Justices Souter, Ginsberg, and Breyer. On the side of evil (in favor of the states' right to discriminate) were SuperVillain Conservatives Rehnquist, Thomas, and O'Connor teaming up with SuperVillain Liberal Stevens. That's quite an amazing lineup if you follow the court. According to Prof. Bainbridge:

Even casual followers of the Supreme Court will note that this is a VERY unusual lineup. According to the Harvard Law Review's statistical analysis of the Supreme Court's 2003 term (available to Westlaw subcribers), in non-unanimous cases, Stevens and Thomas vote together only 16.4% of the time. Conversely, Scalia and Souter voted together in only 20.4% of non-unanimous cases. In none of the 19 5-4 decisions handed down in the 2003 term did the Justices align as they did in this case (the 5 justice majority consisted of Rehnquist, O'Connor, Scalia, Kennedy, and Thomas in 9 of the 19 cases and of Stevens, O'Connor, Souter, Ginsburg, Breyer in 5.)

Even more strikingly, out of the 175 5-4 decisions handed down in the ten terms between 1994 and 2003, the Harvard Law Review reports (again available only to Westlaw subscribers) that the Court has never - not once - broken out as it did in this case. Think about that: The 5 justice majority had never voted together in a 5-4 case once in the last 10 years.

I'm sure the decision will be out in comic book graphic novel form shortly.

[Linked to the Beltway Traffic Jam.]