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With both sides acknowledging a circuit split, will the Supreme Court grant cert?

Petitioners filed their reply brief in the latest U.S. Supreme Court challenge to discriminatory wine retailer shipping laws. This brief represents the last brief filed at the cert stage before the U.S. Supreme conferences on January 6th and decides whether to grant cert in this case. At issue is whether North Carolina’s wine retailer shipping law, which permits in-state retailers to ship wine but prohibits out-of-state retailers from doing the same, violates the Commerce Clause’s nondiscrimination principle or is it constitutionally protected by Twenty-first Amendment interest.

The reply brief focuses on the circuit split on issues pertaining to the evidentiary standard required to justify a state discriminatory wine retailer shipping law.


For transparency’s sake, I need to disclose that I filed an amicus brief on behalf of the National Association of Wine Retailers (NAWR). The amicus brief focused on the circuit split between the 4th and 7th Circuits on whether a state discriminatory law can be justified.

In Lebamoff v. Rauner, an Illinois discriminatory wine retailer shipping case, the 7th Circuit held that a state’s safety and health justifications were not enough to justify discrimination, and that a state needed to build a record and provide evidence of why discrimination was necessary to protect the health, safety, and welfare of its citizens. The 7th circuit reversed and remanded the decision back to the district court with instructions on how to adjudicate the case. Since that time there has been no decision from an Illinois Court.

The Petitioner’s focused on the circuit split and also how the 4th Circuit’s decision departs from previous Supreme Court ruling that applied strict scrutiny.

After reading the Petitioner’s brief and the amicus brief, the Supreme Court requested a response by the Respondents.

Respondent’s response

In an interesting twist of fate, the Respondents make the case that the 4th Circuit and the 7th Circuit opinions conflict with each other. However, they dismissed the notion that the circuit split should require the Supreme Court to hear this case based on timing and percolation.

The first argument advanced by the state was that because the 7th Circuit’s decision was decided before Tennessee Wine and the 4th Circuit was decided after Tennessee Wine, granting cert in this case is premature because the 7th Circuit did not factor Tennessee Wine into its decision.

The petitioner’s reply brief dismisses this notion by stating that there is nothing in Tennessee Wine that calls into question the 7th Circuit’s decision. And in fact, the 7th Circuit noted that its decision may not stand if Tennessee Wine is decided differently. The issue is whether Tennessee Wine would follow the 7th Circuit’s position that Granholm extends to retailers. As history demonstrates Tennessee Wine does agree with the 7th Circuit, and as petitioner argues there is no reason to believe that Rauner would be decided differently after Tennessee Wine.

On the percolation front, Respondents argue that more decisions should be made to flush out this issue before the Court grants cert. The respondents point to numerous cases floating through the circuits and the 7th Circuit not being final.

The Petitioners respond that there is no need for percolation as the legal conflict already exist on an important question.

Will the Court grant cert?

The Court twice rejected cert petition appealing the 6th and 8th Circuit decisions, so why should this time be different?

First, one of the top Supreme Court lawyers in the U.S., Kannon Shanmugam is on the petition. He is very well respected in Supreme Court circles and provides great credibility to the circuit split argument.

Two, a circuit split is clear and even the other side agrees, the issue is whether based on the circuit split the Court should take the case. Additionally, the Respondents admit that the standards applied in the 4th, 6th, and 8th Circuits all differ. It seems this is a case waiting for a resolution by the court.

Three, the previous petitions although making an argument on a circuit split, this petition make a more clear and concise argument.

The Supreme Court Conference is on January 6th and we will know after that how it plays out, even with the odds against a cert petition being granted, the petitioners are making their best case for cert.