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Department of Justice v. McNutt

No. 26-204 · October Term 2026 · Federal Taxation

questions presented (PDF) · docket · Oyez

Before argument: 6–3 for Department of Justicethe structural read; case-level odds land once Oyez posts the argument transcript.

Before oral argument the model reads the case's structure and its docket: amicus briefs by side, the Solicitor General's position, the parties' types, the issue area, and which way the lower court ruled, against each justice's record on all of those. That separates the nine, and the table shows it. It does not yet separate cases well enough for a case-level number: the calibration chosen for that arm caps how sure nine correlated votes may make a case, so case-level odds wait for the transcript.

The case

The Department of Justice is challenging a Fifth Circuit ruling that found a 160-year-old federal law prohibiting the production of distilled spirits in residential properties exceeds Congress's enumerated powers. This decision directly conflicts with a Sixth Circuit ruling that upheld the same restriction. The Supreme Court must now determine if this prohibition is a necessary and proper exercise of Congress's power to lay and collect taxes.

  • The central legal question is the scope of Congress's power under the Necessary and Proper Clause, specifically whether it extends to regulating the location of activities related to taxation.
  • The Court will need to consider the historical context and long-standing nature of the excise tax and the associated regulatory scheme.
  • The decision will clarify the balance between federal regulatory authority and potential limits on congressional power, especially when a regulation has been in effect for an extended period.
  • The Court's ruling will impact the interpretation of congressional powers related to tax collection and enforcement.

AI brief written by gemini-2.5-flash from the questions presented and the Oyez facts on 2026-10-29. Commentary only; it is not an input to the model.

Parties
Petitioner: Department of Justice, et al., Petitioner
Respondent: Scott McNutt, et al.
Below
United States Court of Appeals for the Fifth Circuit · April 10, 2026
173 F.4th 204 · ruling coded conservative · cert. granted 10/19/2026
Question presented, as filed

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.

The nine

Each justice's predicted vote and the record behind it: how often they have voted for the petitioner overall, in Federal Taxation cases, and when the lower court ruled conservative; and, once argued, how many questions they put to each side (the side a justice questions more tends to lose their vote). The note under each row is the AI brief's reading, commentary rather than model input.

JusticePredictedOverallThis issueLower court conservativeAt argument
John G. Roberts
Republican appointee · since OT2005

Chief Justice Roberts often emphasizes judicial restraint and respect for long-standing legislative enactments, which could lead him to uphold the historical prohibition as a valid exercise of congressional power. His jurisprudence frequently considers the practical implications of rulings on governmental operations.

69% Department of Justice68%
for the petitioner · 1,512 votes
55%
Federal Taxation · 22 votes
61%
lower court conservative · 734 votes
not yet argued
Clarence Thomas
Republican appointee · since OT1991

Justice Thomas is known for his originalist approach and skepticism of expansive federal power, particularly under the Necessary and Proper Clause. However, he has also shown deference to historical practices, which could be a factor in considering a 160-year-old regulation related to tax collection.

69% Department of Justice59%
for the petitioner · 2,801 votes
53%
Federal Taxation · 57 votes
43%
lower court conservative · 1,365 votes
not yet argued
Samuel A. Alito
Republican appointee · since OT2005

Justice Alito generally favors a more limited view of federal power and emphasizes textualism. He might scrutinize whether the prohibition is truly 'necessary and proper' for collecting taxes, but could also be swayed by the long history of the regulation.

69% Department of Justice62%
for the petitioner · 1,469 votes
59%
Federal Taxation · 22 votes
48%
lower court conservative · 722 votes
not yet argued
Sonia Sotomayor
Democratic appointee · since OT2009

Justice Sotomayor often considers the practical effects of laws and the government's ability to enforce them. She might be inclined to support the government's argument that the location restriction is essential for effective tax collection, given the history of evasion.

69% Department of Justice61%
for the petitioner · 1,192 votes
56%
Federal Taxation · 18 votes
76%
lower court conservative · 594 votes
not yet argued
Elena Kagan
Democratic appointee · since OT2010

Justice Kagan typically defers to Congress on matters of economic regulation and has a pragmatic approach to interpreting federal power. She would likely consider the government's arguments regarding the necessity of the regulation for efficient tax administration.

69% Department of Justice63%
for the petitioner · 1,072 votes
63%
Federal Taxation · 16 votes
75%
lower court conservative · 543 votes
not yet argued
Neil M. Gorsuch
Republican appointee · since OT2016

Justice Gorsuch is a proponent of originalism and often expresses concerns about federal overreach. He would likely examine the historical understanding of the Necessary and Proper Clause and whether the prohibition aligns with that original understanding, potentially questioning the breadth of federal power.

69% Department of Justice65%
for the petitioner · 592 votes
60%
Federal Taxation · 10 votes
59%
lower court conservative · 286 votes
not yet argued
Brett M. Kavanaugh
Republican appointee · since OT2018

Justice Kavanaugh often takes a pragmatic approach, balancing textual interpretation with historical practice and precedent. He might be persuaded by the long-standing nature of the regulation and the government's need for effective tax collection, while also considering the limits of federal power.

69% Department of Justice69%
for the petitioner · 498 votes
67%
Federal Taxation · 9 votes
62%
lower court conservative · 244 votes
not yet argued
Amy Coney Barrett
Republican appointee · since OT2020

Justice Barrett often employs a textualist and originalist methodology. She would likely focus on the plain meaning of the Necessary and Proper Clause and whether the prohibition directly serves the enumerated power to tax, potentially scrutinizing the government's justification for the restriction.

69% Department of Justice66%
for the petitioner · 360 votes
43%
Federal Taxation · 7 votes
60%
lower court conservative · 178 votes
not yet argued
Ketanji Brown Jackson
Democratic appointee · since OT2022

Justice Jackson often considers the practical realities and historical context of legislation. She would likely evaluate the government's arguments regarding the necessity of the location restriction for effective tax collection, taking into account the documented history of evasion.

69% Department of Justice59%
for the petitioner · 244 votes
40%
Federal Taxation · 5 votes
80%
lower court conservative · 127 votes
not yet argued

Rates are each justice's own participation record in the Supreme Court Database, the same history the model trains on; a rate on fewer than five votes is not shown. The predicted vote is VotePredictor SCOTUS' per-justice probability from the structural arm: the docket, the parties, the issue and the lower court, with no transcript yet.

Every call this term, justice by justice · how the model is built and its record. Data as of 2026-10-29.