Hooch, hardball, and Halloween

A Supreme Court relist is a case that returns to a later justices’ conference after being considered but not resolved. The court may need more time to study the petition, request additional briefing, compare it with another case, or work through a difficult disagreement. A relist is not a grant of review, but it keeps the petition alive.

Relisting can therefore be a useful signal. It shows that the petition has received enough attention to remain under active consideration. In this update, nine earlier relists returned, while six petitions appeared as first-time relists. The court also granted review in several previously relisted cases, including U.S. DOGE Service v. U.S. District Court and Blanche v. Ozurumba.

Relisting does not guarantee a hearing. The court denied review in Herrera-Salazar and held Clark v. United States for Berry v. United States. Still, a relist generally makes a petition more likely to receive close consideration than an ordinary petition decided without repeated conference review.

Department of Justice v. McNutt and Ream v. Department of the Treasury challenge 26 U.S.C. § 5178(a)(1)(B). That provision bars distilling in a dwelling house or in a connected shed, yard, or enclosure. The cases matter because two federal appeals courts reached opposite conclusions about the same federal restriction.

In McNutt, the Fifth Circuit held that the ban exceeds Congress’ enumerated powers. It reasoned that preventing home distilling reduces taxable activity instead of helping collect the tax. In Ream, the Sixth Circuit upheld the ban. It said the restriction shifts consumption toward commercial spirits, which are less prone to tax evasion. Ream also asks the court to overrule or clarify Gonzales v. Raich.

The Supreme Court could resolve the circuit split and define how far federal tax enforcement may reach into home production. McNutt involves an existing injunction, while Ream involves a petitioner who wants to distill but has not bought his planned $600 still.

The Supreme Court’s Friday conference docket includes exactly 100 cases and applications. That figure captures the scale of the court’s workload for this conference, which includes petitions, applications, and cases returning for further consideration. The docket is not limited to the whiskey dispute.

Among those 100 matters are six first-time relists. A first-time relist is a petition appearing again after its initial conference consideration. The court’s process also includes older relists making return appearances. Nine relists from the previous week returned in this update, showing that several petitions remain unresolved after one conference.

The docket therefore combines new attention with continuing deliberation. Some relists may be granted, denied, or held for another case. In the previous round, the court granted review in McNutt-related separation-of-powers litigation involving DOGE, granted Blanche and Berry, held Clark for Berry, and denied Herrera-Salazar.

Both circuits examined the same federal law, which prohibits distilling in a dwelling house or a connected shed, yard, or enclosure. The disagreement was about whether that prohibition is sufficiently connected to collecting federal alcohol taxes. The dispute turns on the scope of Congress’ enumerated powers and the Necessary and Proper Clause.

The Fifth Circuit sided with Scott McNutt and the Hobby Distillers Association. It said a ban on distilling reduces taxable activity, rather than helping the government collect taxes, so it was not “plainly adapted” to the taxing power under McCulloch v. Maryland. The Sixth Circuit reached the opposite result in Ream. It said the ban shifts consumption toward commercial spirits that are less prone to tax evasion.

The two courts thus treated the ban’s practical effect differently. One saw lost taxable production; the other saw improved tax enforcement. The Supreme Court is being asked to resolve that conflict, with the government emphasizing that appellate invalidation of a federal statute usually warrants review.

A ruling against the ban would remove or limit federal enforcement of the specific restriction on distilling in homes and connected areas. The immediate practical effect could be greatest for Scott McNutt, the Hobby Distillers Association, and its members, because a federal district court already enjoined enforcement against them. Other home distillers could also gain protection from this particular ban.

The government says the law helps tax collection by directing distilling into places where tax collectors can monitor it. The Sixth Circuit similarly reasoned that the ban shifts consumption toward commercial spirits, which are less prone to tax evasion. Striking the law would reject that justification under the court’s interpretation of Congress’ powers.

The precise consequences would depend on the Supreme Court’s reasoning and the scope of its judgment. The case could weaken this enforcement method while leaving the federal excise tax itself in place. It could also require Congress or tax officials to rely on other lawful ways to collect alcohol taxes, although the article does not identify those methods.

Standing is the requirement that a plaintiff show a real, personal connection to the challenged government action. A person normally cannot ask a court to decide a purely hypothetical dispute. The plaintiff must face a sufficiently concrete injury or credible threat of enforcement. That threshold determines whether a court may reach the merits.

Scott McNutt received a letter from the Alcohol and Tobacco Tax and Trade Bureau after buying distilling equipment. The letter warned that unlicensed distilling is a crime. He and the Hobby Distillers Association then sued, and a district court enjoined enforcement against them and association members. John Ream wants to distill at home, but he has not bought his planned $600 copper pot still. The district court dismissed his case for lack of standing.

The Sixth Circuit reversed on standing and then upheld the ban. The government considers McNutt the cleaner vehicle because his warning and purchased equipment create a more direct enforcement dispute. Ream’s standing is more contestable, even though the appellate court accepted it and reached the merits.

Congress’ enumerated powers are the powers specifically assigned to it by the Constitution. The taxing power permits Congress to impose federal taxes, including taxes on distilled spirits. The Necessary and Proper Clause supports laws that help carry out an enumerated power. The legal question is whether the home-distilling ban is a legitimate means of enforcing the tax.

The government argues that the restriction channels distilling into locations where tax collectors can monitor it. The Sixth Circuit added that it shifts consumption toward commercial spirits, which are less prone to tax evasion. The Fifth Circuit disagreed. Applying the “plainly adapted” idea associated with McCulloch v. Maryland, it said banning home distilling reduces taxable activity rather than helping collect the tax.

The dispute concerns limits as well as authority. A tax may be valid, yet a particular enforcement measure may exceed Congress’ powers if its connection to taxation is too weak. The Supreme Court’s ruling could clarify how the Necessary and Proper Clause applies when federal regulation reaches home production.