Uphill and Against the Odds

December 2004

Uphill and Against the Odds

By Chip Mellor

With every case the Institute for Justice files, we have our eyes on the U.S. Supreme Court. We intend ultimately to set nationwide precedent that protects basic liberties enshrined in the Constitution. But getting to the Supreme Court is a tall order. After all, every year more than 7,000 petitions are filed with the Court asking for review, but only about 75 are accepted. So you can imagine how excited we are about having two cases before the Supreme Court this term, with another two on their way to be considered for review. Each one reflects years of dedication in developing the issue and case the IJ Way. In other words, although we have a lot of hard work still ahead on these cases, just getting this far is a testament to IJ’s unique brand of public interest law.

When the Court hears oral argument in Swedenburg v. Kelly on December 7, the stakes for small wineries and free enterprise will be enormous. Liberty & Law readers will recall that we represent Juanita Swedenburg, whose family winery in Virginia cannot ship wine directly to customers in New York. All wine from out of state must pass through government-imposed wholesalers who routinely mark up the price more than 20 percent per bottle. IJ is up against not only the State of New York, but also the billion-dollar wholesale alcohol cartel, which has hired top legal guns. We argue that whatever authority the 21st Amendment gave states in regulating alcohol, it does not permit clearly protectionist laws like this one. (In-state wineries may ship directly to consumers, but out-of-state wineries may not.) As The New York Times said in its editorial supporting our position, “They cannot justify state regulatory regimes that promote, as the Supreme Court said in another interstate commerce case, ‘economic Balkanization.’”

Our second case, Kelo v. New London, brings to the Court eminent domain abuse, an issue affecting tens of thousands of homeowners and small businesses nationwide. Can a city or state take your property in the name of economic development and give it to another private party just because the government thinks the new owner will generate more taxes or produce more jobs? In the brief span of six years, IJ has transformed this issue from obscurity to national prominence. As in all IJ cases, we employed a uniquely powerful combination of strategic litigation, sophisticated media relations and creative grassroots activism. George Will criticized the ruling of the Connecticut Supreme Court that we are appealing and wrote, “That ruling effectively repeals a crucial portion of the Bill of Rights. If you think the term ‘despotism’ exaggerates what this repeal permits, consider the life-shattering power wielded by the government of New London, Conn.” IJ Senior Attorney Scott Bullock tells the story of this despotism in his article on page six.

In addition, the Court will soon decide whether two other IJ cases will be accepted for review. We will ask the Court to strike down Oklahoma’s law that requires casket retailers to be licensed funeral directors. The 10th U.S. Circuit Court of Appeals, in an unprecedented ruling with dire implications for economic liberty, held that when it comes to justifying any business regulation, “economic protectionism constitutes a legitimate state interest.” This ruling stands in stark contrast to the 6th U.S. Circuit Court of Appeals ruling that struck down a similar law in Tennessee precisely because it was so obviously protectionist and, like Oklahoma’s law, lacked any public health or safety rationale.

Meanwhile, the U.S. Department of Agriculture and a group of private intervenors recently filed an appeal of our victory over coerced speech in the “Got Milk” advertising campaign. Already the Court has agreed to review a similar case in the beef marketing campaign.

While the U.S. Supreme Court will occupy an unprecedented amount of our energies in coming months, we will be pursuing our mission in lower court cases with typical vigor. As you will note from the sidebar on page five, cases that never reach the Supreme Court still play a vital part in our quest to secure liberty from overreaching government.

The fact that we are able to get this far and maintain our momentum on so many important fronts is a testament to the institutional strength our supporters have enabled us to achieve. With such support we can take on long odds and be constantly innovative and entrepreneurial. We are very grateful for that, and we promise to continue to produce tangible results for liberty.

It’s no wonder we’re excited about coming to work each day!Chip Mellor is the Institute’s president and general counsel.