Bench Memos

NRO’s home for judicial news and analysis.

Wine Gone to Their Heads?


This morning’s Wall Street Journal (subscription only) praises yesterday’s Supreme Court ruling that struck down state laws discriminating against out-of-state wine makers and favoring in-state vintners’ direct sales to consumers. But I can’t quite join the party the Journal’s editors throw when they include sentences like this:

“Notably, the Court’s conservatives were split, with Antonin Scalia siding with the free-market majority and William Rehnquist and Clarence Thomas in the states-rights minority.”

Maybe it’s just my pet peeve, but this is lazy journalistic talk of the sort that I don’t like when I see it in the New York Times or Washington Post, so I have to take the Journal to task for it as well. What irks me is the facile identification of the contending sides on the court with ideological positions. Viewed through the Journal’s lenses, the Court is populated with “liberals” and “conservatives,” and its rulings may be characterized in the same way. What interests them in the sentence quoted above is that the case presents us with two kinds of conservatism: devotion to the free market on one side, to states’ rights on the other. Yesterday, in the Journal’s jurisprudential world, one kind of conservatism had more votes than the other, and the rest of the editorial praises the ruling on strictly results-oriented grounds.

The problem with this way of looking at the ruling is not that it fails to account for why the Court’s equally divided “liberals” voted as they did–though the editorial does fail in that way. The real problem is that it fails to take the arguments of the justices seriously on constitutional terms rather than ideological ones. Yesterday’s ruling was either correct or incorrect as a constitutional matter, but you will learn from the Journal only that the editors like its results, which is not the same thing as praising its correctness. (This is not just a journalistic problem–I find myself among a dwindling number of academic constitutional scholars who take seriously the proposition that there is a real Constitution apart from one’s ideological commitments.)

To put it plainly: either the “conservative” Scalia was right–constitutionally right–to join the “moderate” Kennedy and the “liberal” Souter, Ginsburg, and Breyer, or he was wrong–constitutionally wrong. And the “conservative” Thomas was either right–constitutionally right–to write in dissent for the “conservative” Rehnquist, the “moderate” O’Connor, and the “liberal” Stevens, or he was wrong–constitutionally wrong.

Can’t we first talk about a case that way–in the Constitution’s own terms–rather than leaping immediately to ideological labels as though they were always explanatory of something? The reader may notice that I have said nothing about my own view of whether the case (Granholm v. Heald) was correctly or incorrectly decided. Here I will only say that my constitutional opinion and my political preference are at odds with each other. If that’s so for me, could it also be true for some of the justices?


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