Supreme Court

On being cited by the Supreme Court

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Editor’s Note: Today’s post comes from Richard F. Hamm, Professor of History at the University at Albany, SUNY. He is with Michael Lewis co-editor of the forthcoming Prohibition’s Greatest Myths (LSU Press, forthcoming April 2020), which has an essay by Thomas Pegram, who is also cited in Alito’s opinion in the Tennessee case.  

So, in late June of this year, I was reading a United States Supreme Court case.  Not something unusual for me, as I am legal historian as well as a historian of alcohol policy.  Actually what I was reading was the “slip opinion” which used to be the unbound just-off –the-press opinions of the justices, available before the volume of the United States Reports in which the case would be included was compiled and printed.  Today they are available on the internet.  

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The family at the center of Tennessee Wine v. Thomas

The case is one that would interest readers of this blog: it is Tennessee Wine v. Thomas and it concerns how far the second clause of the 21st amendment will reach.  The readers of this blog will know that amendment’s first section repealed the 18th amendment, formally ending national alcohol prohibition in the United States.  What only a few of you know is that its second section gives states broad powers to regulate alcohol.  Based on an important pre-prohibition federal law, the 1913 Webb-Kenyon Act, it reads: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”  And there as I was reading the dense prose of Justice Samuel Alito for the majority of seven justices, I came across my name and a citation to my first book, Shaping the Eighteenth Amendment (UNC Press, 1995).  It’s right there on page 14 and again on page 17, as part of the long discussion of the relationship between the federal government’s commerce power and state alcohol policy.

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Points Bookshelf: “Glass and Gavel” by Nancy Maveety

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“Look, I like beer, okay? I like beer.”

If there is no other solace from the painful testimonies we heard from Christine Blasey Ford and Brett Kavanaugh last September (and there is not), at least we have Matt Damon’s portrayal of the justice on Saturday Night Live.

(The Washington Post made this helpful mashup if your memory needs refreshing:)

With Kavanaugh’s declaration of his beverage of choice still fresh in our minds, Nancy Maveety couldn’t have chosen a better time to publish Glass and Gavel: The U.S. Supreme Court and Alcohol (Rowman & Littlefield, 2019), which details the two-hundred-year-long relationship between alcohol and our highest court. This swift-moving, thoroughly-researched, and useful (it contains recipes!) analysis of the often-tempestuous relationship between alcohol and constitutional law is a useful addition to the canon, not only because its history is unique–to my knowledge this the first extensive history of the Supreme Court’s alcohol rulings–but its format is unique as well. By combining a summary of the Court’s rulings with insightful drinking biographies of the justices themselves, Maveety has crafted a story that shows how America’s alcohol laws have shifted over time, alongside revealing portraits of how our country’s drinking culture has evolved along with, or in spite of, the legal landscape. 

Screenshot 2019-03-25 14.59.06Each of the fourteen chapters focuses on a single Court era, as defined by its sitting chief justice, and Glass and Gavel moves swiftly from the John Marshall Era (1801-1835) to the John Roberts Era of today (2005-current). We watch as justices debate the question of who should be held responsible if liquor is “taken to excess” (this was during the Fuller era, 1888-1910, and Justice Stephen J. Field argued that it was not the seller’s fault), to more modern questions of regulating out-of-state alcohol sales during the “Rehnquist Era of Neo-Temperance” (1986-2005). Major rulings are outlined, Prohibition dominates the middle part of the book, and, by gaining deeper insight into the justices’ own views on drinking, we watch the history of America’s relationship with alcohol unfold from the lofty position of the judicial bench. Glass and Gavel is the story of alcohol in American life and law, told through the lens of the Court’s chief cocktail.

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Points Interview: Nancy Maveety

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Today’s Points Interview features Nancy Maveety, Professor of Political Science at Tulane University in New Orleans, Louisiana, and author of the new book Glass and Gavel: The U.S. Supreme Court and Alcohol (Rowman and Littlefield, 2019). At Tulane, she teaches courses in constitutional law, judicial decision-making, and her latest special topics class “Booze, Drugs and the Courts.” …

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Could the Supreme Court’s Forfeiture Ruling Help End the Drug Wars?

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Did the Supreme Court unanimously de-escalate the drug wars last month? The optimist in me says “yes,” and the historian in me agrees.

In Timbs v. Indiana, the Court ruled that the state could not seize and forfeit the plaintiff’s Land Rover as a result of his drug conviction. While this decision alone will not end “policing for profit,” it will subject state asset-forfeiture laws to unprecedented scrutiny. Michigan and South Carolina legislators immediately introduced bills to reform asset forfeiture, for example, and district attorneys in Alabama scrambled to show how their forfeitures are already transparent and constitutional.

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Drug War Dissents: Robinson v. California

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Editor’s Note: This post is brought to you by Dr. David Herzberg, as associate professor of history at SUNY Buffalo and the author of Happy Pills in America (2010) and his forthcoming project The Other Drug War: A History of Prescription Drug Abuse. Enjoy! 

Most American drug policy historians are familiar with the 1962 Supreme Court decision Robinson v. California, which held that addiction was an illness and not a crime. The case involved a California man sentenced to jail not for buying, possessing, or using narcotics, but for the condition of being a narcotic addict. In striking down the law, the Court declared that addiction was an illness, and that—in Justice Potter Stewart’s memorable words—“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” (Stewart would probably be glad to know that at least one group of people, however small, remembers him for this quotation rather than his “I-know- it-when- I-see- it” definition of “hard-core pornography,” which he later feared would adorn his tombstone.) For historians the decision serves as a convenient marker of the broader shift away from the punitive policies of the “classic era” of narcotics control and towards more medicalized approaches to addiction.

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Of late, drug policy historians have been placing this shift under increasing scrutiny. Complementing the vast and growing literature on medicine as a form of social control, historians like Eric Schneider and Points’ own Claire Clark have begun to focus more on how medical approaches harmonized with, rather than diverged from, punitive ones. Methadone maintenance, for example, was implemented primarily as a crime control measure and was evaluated on that basis, and thus ultimately complemented rather than upended prison-based approaches. Meanwhile, therapeutic communities’ tough-love philosophies could lead to “scared straight” type tactics that, in many cases, were much harsher and farther-reaching than simple imprisonment. Historians’ increased focus on the disciplinary dimensions of medical treatment may be due, in part, to the increasing visibility and intellectual availability of “harm reduction,” which also draws parallels between medical and criminal control of drug use.

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