The US Supreme Court's decision in Granholm v. Heald, striking down State laws banning direct wine sales by out-of-state wineries, has received a lot of media attention. Just a few brief ideas and questions.
A first issue is the highly unusual make-up of majority and minority factions (Breyer and Scalia versus Chief Justice Rehnquist, for example), mentioned also by the Linda Greenhouse for the New York Times. As far as I can see, the case presented a congruence between flexible constitutional interpretation, limitations on States' rights and emphasis on free-market principles (favoured by the majority) versus textualism, full recognition of States' rights and economic protectionalism (chosen by the dissenters). Such an alignment cannot be all that rare, can it?
The Commerce Clause analysis itself - most interesting from a comparative (EU) perspective - seems not to have brought any innovations. The Michigan law at issue simply banned all direct sales by out-of-state wineries and so was patently discriminatory. The New York law required out-of-state wineries to establish a physical presence within the State of New York, which would obviously drive up their costs. This reasoning is not new in the US context and seems very similar to the ECJ's decision in Heimdienst (C254/98) of 2000. In Heimdienst, the European Court of Justice rejected an Austrian law that required door-to-door sellers of groceries to have an establishment within the disctrict they were selling in, or in an adjacent district.
The whole point for the minority in Granholm, however, was that the discriminatory nature of these measures was not a judicial concern because of the status of alcoholic products as "a special category" (per Justice Stevens), established by the 18th and 21st Amendments. There is some interesting rhetoric here on issues of "law and policy". Justice Stevens acknowledges that the Court's decision may represent "sound economic policy" and could be consistent with the policies of the Founding Fathers (not, however, with those of the generation framing the 18th and 21st Amendments). And Justice Thomas in his dissent, speaks of "policy choices" that had been taken away from the courts with the 21st Amendment.