"But maybe you're getting ripped off," replies Souter.
Thomas L. Casey is Michigan's solicitor general, and he immediately runs headlong into the immovable wall that is Sandra Day "Never Overturn" O'Connor. O'Connor is bothered by a 1984 case—Bacchus Imports v. Dias—in which the court ruled, 5-3, that a Hawaiian attempt to boost that state's own fruit wine market by taxing out-of-state wines was not a legitimate application of the 21st Amendment. "Bacchus cuts against you to some extent," says O'Connor. Meaning, in her view, to the extent it makes Casey lose.
Before Casey can attempt to distinguish Bacchus,Kennedy jumps in to say that it's not enough that that case "involved pineapple wine." Ginsburg quotes language from Bacchus stating that "one thing is certain: the central purpose of the 21st Amendment was not to empower states to favor local liquor industries by erecting barriers to competition." She adds, I believe, the words "pineapple whatever" to that quote.
Caitlin Halligan is the solicitor general from New York, and Kennedy pinions her with the same question he'd asked of Casey. "Do you take the position that the state can permit only its own wines for mere protectionist reasons?" Halligan points out that this question isn't presented here. She says that what New York is attempting to regulate "goes to the core of the 21st Amendment." Kennedy adds that it also "goes to the core of the commerce clause," which still precludes discrimination.
Justice Antonin Scalia says that New York needs a "good reason" to treat out-of-staters differently, and Halligan responds that there is a good reason: New York needs an in-state presence to enforce its laws. Souter points out that this is circular: They have to be reasonable laws to require enforcement. Souter inquires whether there is more to this auditing thing than inspecting the winery's books.
"There is more than that," says Halligan. "You need to go onto the premises and count if the wine bottles match the records." Souter asks whether the lower-court record indicates that this even happens with in-state wineries. Halligan says not really. New York seems to want to reserve the right to monitor out-of-state wineries in a way it can't be bothered to monitor its in-state ones. "Isn't that the end of the issue?" asks Souter.
Ginsburg wonders how the New York rule, requiring that every out-of-state winery must establish a costly New York office, helps New York inspectors "count bottles" anyhow. Souter tries to understand whether out-of-state wineries would have to ship exclusively from their in-state offices. "New York hasn't issued these regulations yet," replies Halligan.
Every piece about these consolidated cases starts with the reporter going off to some exotic mom-and-pop winery in some state that isn't Michigan and proceeding to get loaded with the mom-or-pop vintner, who is desolate about their inability to sell $4,000 Shiraz over the Internet. Stupidly, I completely forgot to write that story. Nevertheless, in his rebuttal Clint Bolick tells the whole amassed court to "drive out to Middleburg," Va., and visit Juanita Swedenburg's little operation, where she evidently picks the grapes, answers the phones, and works the cash register. Maybe a little Supreme Court field trip is in order. I call shotgun.