In just over two weeks, Justice Anthony Kennedy will retire from the Supreme Court. And of course we have this week seen the nomination of Brett Kavanaugh to fill Justice Kennedy’s soon-to-be vacant seat.

The appointment of a Supreme Court Justice is – in most respects – kind of a big deal. And so scrutiny is justifiably placed on the background of any nominee. People want to understand the legal philosophy of the nominee and how it may come to bear on his or her application of our laws. This is important stuff, worthy of study and debate. But I’m not going to talk about that.

What I want to talk about instead is the direct shipment of hooch.

Likely the most important alcohol-related legal decision since prohibition, Granholm v. Heald, was decided by the Supreme Court in 2005. In layman’s terms, the case stands for the proposition that if a State is going to permit in-state wineries to ship their products directly to the State’s residents, then it must permit out-of-state wineries to ship their products to those same residents. And why do I want to talk about Granholm?

Because the decision was authored by that same soon-to-be retired justice – Justice Kennedy.

Granholm was a 5-4 decision. Kennedy’s opinion was joined by justices Scalia, Souter, Ginsburg and Breyer. Justices Thomas, Rehnquist, Stevens and O’Connor dissented from the opinion of that slim majority.

In case you haven’t been keeping score, only four of the names I just mentioned (Kennedy, Ginsburg, Thomas and Breyer) remain on the Court. And Kennedy is retiring in a couple of weeks. So if the Court were to take-up a Granholm-type case in its next term, we would be left with only three of the original players in this drama (likely voting 2-1 along the lines of the original holding).

But here’s the rub: of the six Justices who would have joined the Court since Granholm in that hypothetical future scenario, only two (Kagan and Sotomayor) seem to me that they would likely vote in accordance with the original holding. The others (Gorsuch, Alito, Roberts and our presumptive new Justice Kavanaugh) seem at least equally likely to vote along with one or both of the two Granholm dissenting opinions. And if that is true, that would mean that if Granholm (or an extension of Granholm to address, say, the DTC shipment of spirits) were brought before the Court in 2019, the Court might just as likely overturn its prior Granholm decision as any other outcome.

Obviously, this is all speculation. There are movements afoot to try to get such a Granholm-expansion case in front of the Supreme Court. But there is no guaranty that the Court would take the case. It isn’t required to do so. And if the Court did decide to take it, then my speculation could be faulty and they might indeed expand the earlier holding. My crystal ball isn’t any better than yours; who knows what the future may hold.

But here’s what I do think is true – and I hesitate to even say it out loud.

I think the Court’s reasoning in Granholm was flawed.

The majority’s opinion hinges on the view that the state laws at issue in the case (Michigan and New York) were violations of the commerce clause of the Constitution. But the majority’s opinion doesn’t seem to acknowledge that the 21st Amendment to the Constitution (eliminating Prohibition and punting the power to regulate alcohol back to the states) seems to provide an escape valve for the commerce clause analysis. In other words, maybe the state laws couldn’t violate the commerce clause because the 21st Amendment to the Constitution renders the commerce clause inapplicable in the context of the regulation of the importation and sale of hooch. I’m not the first to notice this problem. In fact, it is precisely this problem that formed the basis for Justice’s Thomas’ dissent (which, as I noted above, represented the views of 4 of the 9 judges).

So back to the speculation. If the current efforts to bring a Granholm-style challenge to state laws relating to DTC spirits sales before the Court are successful, what will be the result? My guess? The folks trying to expand Granholm may be really disappointed with the outcome.