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Supreme Court Hears Case Over Total Wine's Desire To Expand Into Tennessee


On this day 100 years ago, the 18th Amendment to the Constitution was ratified, barring the sale of any liquor, wine or beer anywhere in the United States. Fourteen years later, the 21st Amendment repealed Prohibition, but fights over liquor sales continue.

The legal fight at the U.S. Supreme Court today will likely affect the pocketbooks of lots of people. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: While the repeal of Prohibition legalized liquor sales, it left to the states the right to regulate those sales within state borders. Mississippi was the last dry state in the country, finally allowing liquor sales in 1966.

Most of the fights since then have involved state laws that protect in-state interests. In 2005, the Supreme Court struck down laws that allowed in-state wineries to ship wine directly to consumers out-of-state but barred out-of-state wineries from shipping to consumers in-state.

At issue in the Supreme Court today was a case testing a 12-year residency requirement for anyone seeking or renewing a license to operate a liquor store in Tennessee. Now, the posture of this case is, to say the least, peculiar. The state attorney general twice issued legal opinions saying that the law was likely unconstitutional.

But even as the state began approving liquor licenses, the state trade association of liquor store owners - some 500 of them - pitched a fit and threatened to sue. So the newcomers went to court instead. Among them were Doug and Mary Ketchum, represented by the Institute for Justice.

When doctors told the Ketchums their daughter's lung problems would lead to an early death if they didn't move to a place where the air quality was better, they surveyed their choices, quit their jobs in Salt Lake City and bought a house and a liquor store in Memphis, Tenn.

DOUG KETCHUM: We actually moved 2 1/2 years ago. The state had told us they were going to approve our license.

TOTENBERG: But with final approval in limbo, the Ketchums went to court, joined by a national chain of high-end liquor stores known as Total Wine. After a judge agreed that the 12-year residency requirement was unconstitutional, the Ketchums opened their liquor store in Memphis, while Total Wine opened a superstore in Knoxville, offering 8,000 wines, 3,000 spirits and 2,500 beers. It was unlike any other liquor store in the state. And the state liquor store retail association appealed the lower court decision all the way to the Supreme Court.

In the high court today, the state retailers association lawyer Shay Dvoretzky told the justices that liquor sales are different from any other commodity because the 21st Amendment repealing Prohibition granted states, quote, "virtually complete authority to regulate liquor sales."

Illinois Solicitor General David Franklin, representing some 34 states that have laws similar to Tennessee's, echoed that principle. A law like this, he conceded, wouldn't fly if it involved any other product. But liquor is different, and unlike any other product, he maintained, the Constitution's ban on erecting barriers to interstate commerce does not apply.

Lawyer Carter Phillips, representing the new vendors trying to break into the Tennessee market, contended that there is no total carveout from the Constitution for liquor sales. The core principle here, he said, is nondiscrimination. In-staters have to show some health and safety justification for any discriminatory measures against out-of-staters.

Justice Gorsuch - if we agree with you, why wouldn't the next case be the Amazon of liquor sales? Answer - my clients are brick-and-mortar owners. Justice Kagan - but how do we draw the line?

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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