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 Austinwith 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.
For Tennessee Wine & Spirits Retailers Association...
>> National Conference of State LegislaturesRichard 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 AmericaMiguel 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 RetailersKirkland & 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 ScholarsBaker & 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 InstituteCato'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).
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