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Whine, wine, whine.

I commented on this over on Reason's blog, but I thought it was worth mentioning in its own blog entry.

One of the reasons that fights over judicial confirmations are so nasty is because so many people believe that judges make decisions based on their views rather than the law. It is commonly assumed that a judge is deciding what the law ought to be instead of what the law is -- and with the low quality of reporting we see so often from the media, it's not hard to understand why. For instance, yesterday, the Supreme Court ruled that it violated the constitution for states to discriminate against out-of-state wineries. The decision was 5-4; Clarence Thomas wrote the primary dissent. The decision turned upon the somewhat esoteric question of whether §2 of the Twenty-First Amendment trumped the so-called "Dormant Commerce Clause" in relation to the interstate sale of wine. The majority reviewed the relevant history and caselaw and found that it did not; Thomas, on the other hand, interpreted the historical record differently in opining that it did.

Unfortunately, here is how the Associated Press (which supplies content for so many print media outlets, of course) characterized this dissent:

In a dissent, Justice Clarence Thomas argued the ruling needlessly overturns long-established regulations aimed partly at protecting minors. State regulators under the 21st Amendment have clear authority to regulate alcohol as they see fit, he wrote.
Amazingly, that first sentence effectively manages to contain, in just eighteen words, three key errors in it.
  1. Thomas did not argue that the ruling "needlessly" did anything. He said absolutely nothing about "need." He argued that the ruling misinterpreted the relevant statute and the constitution.
  2. The sentence is badly drafted so that it splices together two different ideas: (A) Thomas argued that the ruling needlessly overturned regulations, and (B) the regulations were aimed at protecting children. Thomas, as already noted, did not say the former; he certainly did not say the latter.
  3. That the laws (not "regulations") are "aimed partly at protecting minors" was a claim by the states that were defendants in the cases. It was not a fact agreed to by all sides, not a holding of the court, and not the least bit credible. The laws were certainly aimed at protecting domestic wineries from competition from out-of-state; unless wine can be downloaded from a P2P filesharing network, the idea that minors are going to illegally obtain it from the internet is ludicrous. And even if it were plausible, these laws would do nothing to prevent it, since they allow(ed) minors to order wine, online, from domestic wineries.

Of course, this is simply an isolated throwaway line in a story about a case that is of interest only to winemakers, drunkswine connoisseurs, and constitutional scholars. I'm not claiming any deeper significance. But that's hardly an excuse for this sort of sloppy journalism. Even if purely unintentional, such erroneous reporting still contributes to the belief that judges are making policy -- deciding what alcohol-related policies are "needful" -- rather than interpreting law -- deciding what the constitution requires. That criticism applies to the first two errors; the third seems to me to likely reflect unconscious bias: reporting a claim by one side in the case as if it were fact.

Incidentally, while Steven Bainbridge discusses it extensively, the AP story fails to note the unusual lineup of justices in the majority and minority -- and in particular, ignores the fact that Antonin Scalia and Thomas, so often derided as puppetmaster and puppet, were on opposite sides of the case.


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Comments (1)

Hey, I'm a drunk, so I was interested. But Todd Zywicki pointed out that others should rejoice, too:


"This case also is important beyond wine. By dissing New York's "physical presence" argument, the Court thankfully reasserted the ancient principle that a law does not become nondiscriminatory against out-of-staters simply by permitting them an option to become in-staters. In so doing, the Court saved the entire fabric of e-commerce in the country."


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