The Supreme Court meets again, will it be different this time?

On October 8th, the Supreme Court will hold a conference to discuss whether to grant cert in Sarasota Wine Market LLC v. Schmitt. The petitioners challenged the 8th Circuit’s ruling, which upheld Missouri’s discriminatory wine retailer shipping law. Under the Missouri law, in-state retailers can ship wine to Missouri residents, out-of-state retailers are not afforded this same privilege.

This is the Supreme Court’s second go around on a wine retailer shipping case. In Lebamoff Enterprises v. Whitmer, which dealt with the 6th Circuit’s decision upholding Michigan’s wine retailer shipping laws, the Court denied the cert petition, and allowed the 6th Circuit’s decision to stand.

So, it begs the question, will history repeat itself or will the Court change course and decide to grant cert?

Similarities exist between Lebamoff and Sarasota Wine. Both cases deal with the same subject matter, discriminatory wine retailer shipping laws, and in both instances the Supreme Court required the state to provide a response to the cert petition and amicus briefs.

With these similarities, why should anyone believe, the Court will pursue a different course of action this time?

Argument for the Court not granting cert

The main argument for the Court rejecting cert is no clean circuit split exist on this issue. The Court will hear cases involving circuit splits because the Court wants to resolve a legal issue and provide lower courts a unified interpretation of the law. Additionally, under this fact pattern, if there was a clean circuit split, the Court’s hand may be forced to grant cert, because the judicial system would provide rights to consumers in some states and deny those rights in other states based on the location of judicial circuits.

The 6th Circuit was the first circuit to decide a wine retailer shipping case, the 8th Circuit is the second, both concluded the same way. However, there is a question of whether the 7th Circuit’s decision, although not making a final decision based on a reverse and remand, constitutes a circuit court decision. The 7th’s outcome differed from the 6th and 8th’s, and could constitute a circuit split.

Without the luxury of a clean circuit split though, it is harder for the Supreme Court to grant cert.

Hence, conventional wisdom would dictate that until the Court is forced into hearing a case, it will stand on the sidelines until forcibly called into the game.

Argument for the Court granting cert

Yes, there are many similarities between Sarasota Wine and Lebamoff, but there are some important differences.

Lebamoff analyzed whether Michigan’s statute violated the Commerce Clause, and whether Michigan had a legitimate non-protectionist reason for discriminating.

Sarasota Wine’s main theory was that because the state law protects essential elements of the three-tier system that a Commerce Clause analysis is precluded. The 8th Circuit takes a different path to upholding a discriminatory wine retailer shipping law than the 6th Circuit.

The 8th Circuit’s path could cause greater scrutiny from the Court.

Many cases leading up to Tennessee Wine came to the conclusion that Granholm only applied to producers and that the 21st Amendment acted to preclude a Commerce Clause analysis of discriminatory state liquor laws. These cases included: Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185 (2d. Cir. 2009); Wine Country Gift v. Steen, 612 F.3d 809 (5th Cir. 2010); and Southern Wine & Spirits v. Alcohol & Tobacco Control, 731 F.3d 799 (8th Cir. 2013).

At an NCSLA constitutional panel I was on, we were asked for predictions on whether the Court would grant cert in Tennessee Wine. We all said no, the facts were strange and the durational residency requirement made no sense as a legal controversy.

To our surprise the Court granted cert in Tennessee Wine, even though there was no circuit split on any central issue of the case. What specifically influenced the granting of cert, I don’t know!  But maybe the Commerce Clause preclusion arguments made in the aforementioned cases influenced the Court to step in and clarify the law.

Interestingly, a Missouri federal district court decided the Sarasota Wine case based on the Southern Wine and Spirits decision, which allowed discrimination because Granholm was limited to producers. The 8th Circuit was required to decide the issue essentially de novo as the district court’s legal grounds were deemed irrelevant by Tennessee Wine.

The Court demonstrated in granting cert in Tennessee Wine that it does not always follow conventional wisdom, or that it will only step in when there is a circuit split.

The Justices made clear in Tennessee Wine the legal standards for adjudicating Commerce Clause/21st Amendment cases. Specifically, that an evidentiary record is required to justify discrimination.

It’s the 8th Circuit’s inability to follow the Court’s legal standards that may influence the Court granting cert in this case.

If the court grants cert what will result?

Many people believe that if the Court grants cert that we have the World Series of all cases, the one that will settle the decade’s long issue, once and for all. That maybe true and it may not.

Yes, the Court could put down a marker and indicate that discriminatory wine retailer shipping laws violate the Commerce Clause, or that the 21st Amendment justifications could uphold a state law, or the Court could go another way.

The third way is the Court could vacate and remand the issue back to the 8th Circuit. In Meadwestvaco Corp v. Illinois Department of Revenue, 553 U.S. 16 (2008), the Court vacated and remanded a case because the state court misapprehended the principles the Court developed in numerous decisions for deciding a legal issue. The Court held that the state court decision was vacated and “remanded for further proceedings not inconsistent with this opinion.”

The Court could apply the same legal conclusion in Sarasota Wine and decide that decisions that do not go through the legal methodology applied in Granholm and Tennessee Wine, must be vacated and that a legal record must be developed by a state to justify discrimination.

Don’t be surprised if the Court wants to have their cake and eat it too. Granting cert and deciding the case this way, would serve the Court well. It can dictate to the lower courts the proper standards and ensure courts are following these standards, and then at the same time decide the case on its merits when there is actually a circuit split.


The odds are against the Court granting cert, especially in absence of a clean circuit split.  However, the odds improved when the Court required the state to respond. Even though the odds are against the Supreme Court granting cert in this case, I am going to go against conventional wisdom and predict a granting of cert.