Law students, topflight lawyers and the most responsible of journalists learn early that it's high-stakes poker to cogitate the direction the Supreme Court leans based merely on the justices' questions or comments in oral argument, even though their clerks have digested the briefs and advised on what facts and precedents are weighty and what other good arguments are beyond the pale.
Ignoring that wisdom, I raise my bet on a terribly disappointing outcome by noting that profoundly intriguing is Mr. Justice Scalia's comment to the states' rights defenders that tips us off that he at least wonders if the trial courts' record contains enough uncontroverted facts and "material [that] sustains your burden".
What "burden", I ask, did the wholesaler and state advocates have to meet. I ask because typically a presumption of constitutionality exists when legislation is contested. But no question about the burden of overcoming that presumption was posed by any justice to the direct-shippers.
Hence, I suggest there're not only 3 or 4 alternatives for the court, but there's likelihood of a "dead-heat" outcome, which few if any have mentioned. It is the Court may choose a compromise, which recognizes the Court has two other states' rights cases before it and so finesses a plausibly politically seditious conservative versus liberal confrontation over greater expansion of a supreme federal power versus so-called states rights.
Following Mr. Justice Scalia's lead, the Court just might refine the circle of proofs needed that need to be established before a state has a safe harbor in which to regulate under the aegis of the 21st Amendment in areas Congress has not.
Under this alternative, the Court disappoints and confuses everyone and throws the whole kit and caboodle mess back to the state legislatures. If this occurs, the result is Michigan case affirmed, and New York case reversed, but nothing more profound, as yet. Of course such a ruling would come with a love note from the Court that, if it chooses, Congress could solve the dilemma too and unify what are now Balkanized rules of the alcohol road.
