The Sky Did Not Fall: Supreme Court Denies Cert in Day v. Henry and Chicago Wine v. Braun

The Supreme Court took a pass on retailer direct shipping. And with that, the Henny-Penny chorus warning that Tennessee Wine meant the sky was falling on the three-tier system will need a new weather report.

On May 18, 2026, the Court denied certiorari in Day v. Henry, No. 25-788, the Arizona retailer-shipping case out of the Ninth Circuit, and Chicago Wine Company, LLC v. Braun, No. 25-844, the Indiana case out of the Seventh Circuit. Both appeared on the Court’s order list under the very unromantic heading “CERTIORARI DENIED.” No opinion. No statement respecting denial. No noted dissent. No grand theory of alcohol regulation. Just denial. 

That silence matters. A denial of certiorari is not a merits ruling. The Court has long warned that denial of cert “carries with it no implication whatever” about the Court’s view of the merits. It simply means fewer than four Justices voted to take the case. 

So no, the Supreme Court did not “approve” Arizona’s law. It did not “approve” Indiana’s law. But just as importantly, it did not use these cases to blow up the three-tier system, bless retailer direct shipping nationally, or tell the lower courts that Block v. Canepa now controls the field.

That is the practical headline: the sky did not fall.

Block was not hiding in the cellar

The most interesting part of the denial is timing.

On May 6, 2026, the Sixth Circuit issued its published decision in Block v. Canepa, striking down Ohio’s restrictions on out-of-state retailer wine shipping and the related transportation limit. The court reversed the district court and remanded, holding that Ohio’s direct-ship and transportation restrictions violated the dormant Commerce Clause.

The Day petitioners immediately put Block in front of the Supreme Court. Their May 7 supplemental brief told the Court that Block “destroys the central premise” of the opposition to certiorari and argued that the Sixth Circuit’s decision made the conflict both real and outcome-determinative. The Day docket confirms that the supplemental brief was filed and distributed before the May 14 conference. 

In other words, the Court was not unaware of Block. It had Block. It had Day. It had Chicago Wine. It had the alleged split. It denied cert anyway.

That does not tell us why. Maybe the Court thought the issue needs more percolation. Maybe it thought Day and Chicago Wine were bad vehicles. Maybe it wants the Sixth Circuit to deal with Block en banc before the Justices step in. Maybe it is content to let Block sit for a while as the odd Ohio vintage in the rack. Or maybe there simply were not four votes to get back into alcohol-shipping doctrine this Term.

Without a statement respecting denial, we do not know. But we do know this: if Block was supposed to force the Court’s hand immediately, it did not.

What Day leaves in place

In Day v. Henry, the Ninth Circuit upheld Arizona’s in-state physical-premises requirement for retailers. Its amended opinion took the “essential feature” path: because Arizona’s physical-premise requirement was part of the state’s three-tier architecture, the court held that “no further consideration of nondiscriminatory alternatives was necessary.”

That was the problem the Day petition teed up. The challengers argued that the Ninth Circuit had converted “three-tier” into a shortcut around Tennessee Wine’s evidence-based inquiry. The dissent in Day made the point sharply, rejecting the idea that forcing out-of-state retailers to open an Arizona storefront somehow avoids discrimination, calling that view one that “defies both precedent and common sense.”

But the Supreme Court declined the invitation. Arizona’s law remains in place. The Ninth Circuit’s reasoning remains on the books. And states defending physical-presence laws will continue to cite Day for the proposition that some in-state presence requirements are sufficiently tied to three-tier regulation to survive.

That is not the end of the doctrine. It is, however, a very bad day for the theory that Tennessee Wine made every physical-presence rule constitutionally doomed.

What Chicago Wine leaves in place

Chicago Wine Company v. Braun was always the stranger companion case because the Seventh Circuit got to the same result by two different routes.

The court’s per curiam opinion said it plainly: “We affirm on two different lines of reasoning.” Judge Easterbrook found no discrimination. Judge Scudder found discrimination, but concluded that Indiana’s evidence justified the restrictions under the Tennessee Wine framework.

That split reasoning made Chicago Wine a less elegant Supreme Court vehicle than Day, but it may be more useful for regulators. Judge Scudder’s concurrence is the blueprint states should study: do not just say “three-tier”; build a record. Show inspection problems. Show enforcement gaps. Show tax-collection issues. Show age-verification concerns. Show why the state’s system works the way it does.

That is where these cases are increasingly won or lost—not in slogans, but in records.

So what happens to Block?

Block is now the live wire.

The Sixth Circuit did what the Ninth and Seventh Circuits did not. It rejected Ohio’s essential-feature argument, applied Tennessee Wine directly, and held that Ohio’s restrictions could not be justified by the record. The court wrote that Ohio’s direct-ship and transportation restrictions “cannot be essential features of a system that does not exist for wine,” and later concluded that the predominant effect of the direct-shipping restriction was protectionism.

That makes Block important. But after May 18, it does not make Block nationally controlling.

If anything, the Supreme Court’s denial may shift attention back to the Sixth Circuit. Ohio may seek rehearing en banc. If en banc review happens, the Sixth Circuit could narrow, affirm, or reverse the panel. If en banc review does not happen, Ohio may eventually seek certiorari from Block itself. Depending on posture, there may be arguments for full review, summary reversal, or denial. Or the Supreme Court may simply let the Sixth Circuit sit with its outlier for a while.

That last possibility should not be dismissed. The Court’s certiorari doctrine has a perfect wine-law phrase for this moment: “Wise adjudication has its own time for ripening.” 

The takeaway

Retailer direct shipping did not get a national permission slip.

Three-tier did not collapse.

The Supreme Court did not bless every physical-presence law.

And Block did not magically become the law of the land.

What we have instead is a messy but familiar alcohol-law landscape: Arizona and Indiana keep their wins; Ohio becomes the active battleground; retailers keep pressing the dormant Commerce Clause; states keep defending physical presence; and the lower courts continue to disagree about whether “essential feature” is a legitimate doctrinal category or a convenient escape hatch.

For the industry, the practical lesson is simple. If you are a state, do not rely on incantations. Build the record. If you are a retailer or consumer challenger, do not assume Tennessee Wine wins the case for you. Build the record. If you are operating in the market, do not plan around a Supreme Court rescue that did not arrive.

The sky did not fall. The cases will keep fermenting.