The Supreme Court released its order list today on petitions of certiorari before them. Along with denials of another 150 cases, the Supreme Court denied the petitions in the 7th Circuit case out of Indiana and the 9th Circuit case out of Arizona.
These cases were dormant Commerce Clause challenges to state alcohol laws that regulated how alcohol is sold by retailers in the state and the requirements related to physical presence regulations for the retailers to engage in commerce. The petitions sought to challenge the state’s ability to regulate alcohol and scuttle previous Supreme Court precedent that has repeatedly noted “The three tier system is unquestionably legitimate.” The order today joins a long list of similar challenges brought and defeated against state alcohol retail laws in the 1st, 2nd, 3rd, 4th, 5th, 6th (Michigan), and 8th Circuits.
These twin cert denials—over two petitions filed for the plaintiffs by a leading Supreme Court advocate—underscore the weakness of the argument against these laws. There should be no disagreement over this issue in the lower courts, so the indefensible outlier opinion issued by a Sixth Circuit panel last week against Ohio’s law—which created what Arizona in its papers referred to as an “intra-circuit split,” in defiance of a previous Sixth Circuit opinion upholding Michigan’s law—should be ripe for reversal by the en banc Sixth Circuit. That would obviate any need for Ohio to petition the Supreme Court for a writ of certiorari.
(previous post) Supreme Court Slated to Decide Whether to Take Two Alcohol Retail Shipping Cases Next Week
The briefing is all completed and now it is in the hands of the Supreme Court whether they will review the 9th Circuit decision upholding the Arizona retail shipping law or the 7th Circuit decision upholding the Indiana shipping law.
The briefs of interested parties on the Arizona case can be found here.
The briefs of all the interested parties on the Indiana case can be found here.
The Supreme Court is scheduled to consider whether to take these cases as well as hundreds of other requests at its next conference. The Court noted that the conference for these cases is slated for May 14th. The Court could not reach a decision on these cases, ask for the United States government’s position, or vote to take the case, or vote to not take the case.
The Court’s calendar indicates that they will notify the public of a decision on taking the case on Monday May 18, Tuesday May 26, or any of the other Monday in June until the end of the Court’s session in June.
(previous post) Two Alcohol Retailer Shipping Cases Seeking Supreme Court Review
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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