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Department of Justice, et al. v. Scott McNutt, et al.

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 24-10760 · judgment April 10, 2026


64%
estimated cert probability
(petition-stage, structural)
95% interval 54%–72%
Rule 10: dissent below, circuit split argued

About 15.4× the 4.1% base rate. The model weights this up for a federal-government petitioner, counsel who has won certiorari before, and a Fifth Circuit decision below.

Question presented

Since the Founding era, Congress has imposed an excise tax on the production of distilled spirits. After documenting the extensive evasion of the government’s efforts to collect the tax, Congress enacted a comprehensive scheme requiring distillation stills to be licensed and subject to inspection. One aspect of the scheme prohibited stills from being located in various places, including within residential properties—a restriction that has now been in effect for 160 years. In the decision below, the Fifth Circuit held that the location restrictions exceed Congress’s enumerated powers, in direct conflict with a decision of the Sixth Circuit upholding the restriction on home distilling. The question presented is as follows: Whether the prohibition on the production of distilled spirits in particular locations, including “in any dwelling house” or “in any shed, yard, or inclosure connected with any dwelling house,” 26 U.S.C. 5178(a)(1)(B), is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.

Counsel of record

For petitioner
D. John Sauer
Solicitor General

For respondent

Case

Conference history

Proceedings

  1. Aug 14 2026
    Petition for a writ of certiorari filed. (Response due September 17, 2026)