The first half of 2026 will be spent on Supreme Court watch as the court has been asked to review the decisions of two circuit courts below. Recall, in the past few years, the Supreme Court has already passed on taking reviews of similar alcohol cases where the states won in the 3rd, 4th, 6th, and 8th Circuits.
The first case appealed is the decision in the Ninth Circuit that upheld Arizona’s law requiring retailers of alcohol to have a physical presence in Arizona to comply with the state’s three tier system. The petition seeking certiorari as well as an amicus brief of some wine “consumers” in support of the petition can be found here at the Supreme Court’s Docket Search.
The second request for the Supreme Court to hear an appeal stems from the Seventh Circuit’s decision upholding an Indiana law against an Illinois retailer’s effort to ship to Indiana consumers. Recall, the Indiana decision was one of the longest to decide as one of the judges that heard the case passed away after oral argument. Nearly four years later, the remaining judges ruled for the state. The documents related to the Supreme Court request can be found here.
Reading the two petitions for certiorari it is clear that the preference of the plaintiffs is that the Supreme Court take up the Ninth Circuit first – (From the Chicago Wine petition: “This petition should thus be held pending the disposition of the petition in Day and then disposed of as appropriate.”)
The petitioners frame the question presented in the 9th Circuit case as: “Whether a physical-presence requirement that discriminates between in-state and out-of-state alcohol retailers can be deemed constitutional under the Twenty first Amendment solely as an essential feature of a State’s three-tier system of alcohol distribution, without concrete evidence establishing that the requirement predominantly promotes a legitimate, non protectionist interest such as public health or safety.”
In language I found frankly both frustrating and hilarious, the petitioners claim with a straight face that the court must take up this case because of “the volume of litigation fueled by the question presented and the ensuing burden on the federal judiciary.” That statement is frankly interesting when the “volume” and the “burden” they are talking of course has all been brought about by only one attorney (who signed this petition) and his quest to get before the Supreme Court. And the underlying “problem” is in stark contrast with reality as reflected in repeated public opinion polls that continue to show that 85% of Americans are satisfied with alcohol regulation in their state.
Depending on further requests by the Supreme Court or filings by the states in response to the pending petitions for certiorari, it is likely that the Supreme Court will meet to consider whether to take this case in May or June of this year. If the Supreme Court decides to grant the cert petitions, oral arguments would likely be later in 2026.
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