The Merlot Split

What got into Supreme Court justices Antonin Scalia and Clarence Thomas? Eternally joined at the hip, these deeply conservative justices parted ways Monday over fine wine.

Scalia joined the 5-4 majority in deciding that state governments may not treat out-of-state wineries differently by banning Internet and other direct sales to individuals and retailers, if they allow such sales by in-state wineries. The decision was ominously close -- simple logic would seem to dictate overturning the ban, though the majority also had the mighty “commerce clause” of the Constitution on its side.

Two dozen states have such bans. (Wine snobs would say they probably need them to get anyone to drink the local stuff.) Not incidentally, these states could rake in hefty extra taxes by forcing out-of-staters to sell only through local wholesalers.

Given the Constitution’s ban on interstate trade barriers, the question is why four members of the court -- Thomas, Chief Justice William H. Rehnquist, Sandra Day O’Connor and Stephen G. Breyer -- voted to uphold blatant discrimination against out-of-state wineries. Thomas wrote the main dissent, hinging on the unique sweep of a state’s power to regulate liquor sales, derived from the constitutional amendment that ended Prohibition. The amendment and federal law “took those policy choices away from judges and returned them to the states,” wrote Thomas.

That’s nonsense. This is a case of simple protectionism. States can ban online liquor sales, but cannot ban them only for interstate transactions.

The lack of clarity emanating from the 5-4 decision on a basic constitutional question reflects a rift running through the conservative cause: libertarianism and free trade versus states’ rights and regulation of morality. The wineries were represented before the court by the conservative-libertarian Institute for Justice, and their opponents were backed by such morally conservative groups as the Eagle Forum and National Assn. of Evangelicals. In a more civilized way, it’s the same split so visible in the Schiavo case.

The court made California’s small wineries big economic winners Monday. What court-watchers talked about at the water cooler, though, was Scalia and Thomas, apart.