On Friday, the Supreme Court will meet in conference and decide whether to grant cert in Wilson v. Miller. Ohio is asking the Court to review the Sixth Circuit’s decision holding that Ohio’s discriminatory wine retailer shipping law is unconstitutional. In a rare turn, the state and the retailer plaintiffs agree on one thing: the Court should take the case.

They agree on little else.

Two Ohio restrictions are at issue:

  1. Whether a retailer can be required to have a physical presence in Ohio as a condition of selling and shipping wine to Ohio consumers.
  2. Whether Ohio’s limit on personal importation of wine is constitutional.

Personal Importation

Ohio limits residents to bringing six bottles of wine into the state in any 30-day period. The Sixth Circuit struck down the limit because Ohio failed to show it served a public health or safety purpose. Ohio argues the limit is an essential element of its three-tier system and that the Sixth Circuit’s ruling opens a hole that could be exploited.

The retailers respond that this issue needs more time in the lower courts because no circuit split exists on it. They also point out that Ohio allows far more wine to be shipped directly to consumers than it allows residents to carry in themselves.

The Court could grant cert on the physical presence question while declining the personal importation question. I don’t think that is a likely outcome.

The Main Event: Physical Presence

The heart of the case is the physical presence requirement, and the fight centers on the “essential feature” test.

Ohio’s position is that physical presence is an essential feature of the three-tier system, so it can be used as a per se justification for discriminating against out-of-state retailers. The retailers’ position is that Ohio must meet the Tennessee Wine standard, which requires concrete evidence that a discriminatory law’s predominant effect is not protectionism but the advancement of a legitimate nonprotectionist interest such as public health or safety.

The circuits are split 4-3 on this question. But a split on methodology alone has not been enough. The Court denied cert in Day v. Henry, where the Ninth Circuit applied the per se approach, and it has turned away petitions challenging Sixth and Eighth Circuit rulings on the same grounds.

What Will Make or Break This Petition

What’s new is a split in results. Until the Ohio case, the circuits disagreed on the analysis but kept reaching the same outcome: the shipping restrictions survived. The Sixth Circuit’s ruling for the retailers changed that. It forced a state to come to the Supreme Court asking for an answer, and it means a retailer can now lawfully ship into one state but not its neighbor depending on which circuit it falls in.

Tennessee Wine, which we thought settled whether Granholm extends to retailers, left more questions than answers, chiefly what level of scrutiny applies to discriminatory liquor laws and how much weight the Twenty-first Amendment carries. The circuits can’t draw a bright line, and now they are reaching conflicting results.

My prediction: this time the Court does not pass. It grants cert and resolves the question once and for all.