Ohio Asks High Court to Do Appellate Court's Job

This isn't likely to end well. The Ohio Solicitor General decided not to ask the Sixth U.S. Circuit Court of Appeals to hold an en banc hearing to resolve a conflict among its own decisions. Instead, it wants the U.S. Supreme Court to do the job of the appellate bench.

Recall there are two Sixth Circuit decisions on alcohol retail shipping. One, in essence, says it's fine and dandy for out-of-state retailers to ship to Ohio citizens. The other says it's not.

The Supreme Court has already refused to review dormant Commerce Clause cases where states have won retailing shipping challenges in the First, Second, Third, Fourth, Fifth, Sixth (Michigan), Seventh, Eighth and Ninth Circuits. It recently refused to review state wins in the Seventh and Ninth Circuits.

So, out bet is that this case may never get to the briefing stage. The easiest thing for the court to do is to remand it to the Sixth Circuit with instructions to resolve its internal conflict itself. Thus far the Roberts Court has shown no inclination to play the role of therapists for lower courts that can't decide what the law is.

Given the court's rejection of appeals from every circuit, it's pretty clear to us that the justices think the law is what the law is now and see no basis to find it should be change.