Supreme Court agrees to decide whether the federal ban on home distilling is constitutional

The U.S. Supreme Court agreed Monday, Oct. 19, 2026, to decide whether Congress may bar people from distilling liquor at home, granting the Justice Department’s petition in Department of Justice v. McNutt, No. 26-204, according to the court’s order list.¹

The provision at issue, 26 U.S.C. 5178(a)(1)(B), prohibits distilling “in any dwelling house” or “in any shed, yard, or inclosure connected with any dwelling house.” Violators face a fine of up to $10,000, up to five years in prison or both, the government’s petition says. The petition traces the dwelling-house ban to 1866; the Fifth Circuit dated it to an 1868 law.²

The Hobby Distillers Association, a Texas-based group, and four of its members sued in federal court in Texas. A district judge blocked enforcement against Scott McNutt, the association and its members in July 2024. On April 10, 2026, the U.S. Court of Appeals for the Fifth Circuit upheld the injunction and reversed the judge’s dismissal of three plaintiffs for lack of standing. It held that the ban falls outside Congress’s taxing power and violates the Constitution’s Necessary and Proper Clause. Judge Edith Hollan Jones wrote that the provisions “reduce revenue by preventing individuals from making distilled spirits.”²

On April 21, the Sixth Circuit reached the opposite result in Ream v. Department of the Treasury. In a 2-1 decision, it held that the ban is “a necessary and proper means of collecting the federal excise tax on distilled spirits.”³⁴

The two sides

Solicitor General D. John Sauer’s petition argues that keeping stills out of homes promotes tax collection “by channeling taxable conduct into locations where tax evasion is more difficult.” It says the Fifth Circuit’s decision is in “direct conflict” with the Sixth Circuit’s.²

The challengers also asked the court to take the case while defending the Fifth Circuit’s ruling. Their brief says the government claims a power “to criminalize local conduct that might theoretically conceal taxable activity,” which it calls “a federal police power in all but name.” They asked the court to grant Ream’s petition, No. 26-93, as well and consolidate the cases.⁵

Ohio and 14 other states, including Florida, filed a brief supporting Ream’s petition. “Unlike a good whiskey, this split will not age well,” the states wrote.⁶

Other actions on the list

The court agreed to hear Association for Education Fairness v. Montgomery County Board of Education, No. 26-12, limited to whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must show that the targeted group “suffered an aggregate disparate impact relative to its share of the applicant pool.”¹ The association, a group of Montgomery County, Maryland, parents, contends that changes to magnet middle school admissions were adopted to discriminate against Asian American students.⁷ The school board says it adopted “a race-neutral, race-blind lottery” during the pandemic; the Fourth Circuit upheld dismissal of the suit.⁸

The court denied the petition of Khalid Shaikh Mohammad and Mustafa Ahmed Adam al Hawsawi, No. 26-13. They challenged a D.C. Circuit ruling that gave effect to the defense secretary’s withdrawal from pretrial agreements that, the government’s brief says, “would have spared them the death penalty” in the Sept. 11 case.⁹ The order list says Justice Brett Kavanaugh “took no part in the consideration or decision of this petition.”¹ The court also denied a petition from Walid bin ‘Atash, No. 25-1335, arising from the same D.C. Circuit case.¹¹⁰

What the records do not show

• As of Oct. 20, the McNutt docket lists no argument date.¹¹
• Ream’s petition was distributed for the same Oct. 16 conference, but the order list records no action on it, and its docket shows no ruling.³
• The order list gives no reasons for the denials or for Justice Kavanaugh’s nonparticipation.
• The grant does not decide whether the home-distilling ban is constitutional.