The U.S. Supreme Court agreed Monday to decide whether a 158-year-old federal law that bans Americans from distilling spirits at home is constitutional, taking up a case that could reshape the hobby of home whiskey-making nationwide. The justices granted certiorari in Department of Justice v. McNutt, according to the Court's own docket, setting up arguments likely in 2027.

The law at issue dates to 1868, when Congress barred anyone from producing distilled spirits inside a dwelling, shed, yard or other enclosure used as a home. Violators today face up to five years in prison, steep fines, and forfeiture of the property where the still was found. Lawmakers wrote the rule to stop 19th-century moonshiners from dodging a federal spirits tax that, at the time, cost more than the liquor itself — an 1867 House report estimated "at least seven-eighths" of all spirits went untaxed.

A circuit split forces the issue

The case began when the Hobby Distillers Association and a Texas hobbyist, Scott McNutt, sued, arguing the ban has nothing to do with collecting taxes on commercial liquor and instead criminalizes purely personal, non-commercial conduct. A federal district judge agreed in 2024, and in April the 5th U.S. Circuit Court of Appeals upheld that ruling, with Judge Edith Jones writing for the panel.

"CONGRESS CANNOT PROHIBIT INTRASTATE ACTIVITY SOLELY BECAUSE IT MIGHT PRODUCE PRODUCTS HARD TO TAX."

But the 6th Circuit reached the opposite conclusion in a separate case, Ream v. Department of the Treasury, upholding the ban in April 2026. That split between appeals courts is what made Supreme Court review all but inevitable.

Solicitor General D. John Sauer had urged the justices to take the McNutt case, arguing home stills are easier to hide from inspectors and that letting the 5th Circuit's ruling stand would gut the government's ability to enforce tax compliance. Notably, even the hobbyists who brought the lawsuit agreed the Supreme Court should weigh in, telling the justices in briefing that the question "should be resolved" at the national level rather than left to a patchwork of conflicting circuit rulings.

The dispute reaches far beyond basement tinkerers. Home-distilling advocates say tens of thousands of Americans who legally home-brew beer and wine want the same right to make spirits, and argue the government's position — that Congress can ban any private activity merely because it could theoretically conceal taxable conduct — has no real limiting principle. The Justice Department counters that distilled spirits carry unique excise-tax and safety concerns that beer and wine do not.

No date for oral argument has been set, but a ruling is expected by the end of the Court's term, around late June or early July 2027. Until then, the 1868 ban remains federal law outside the three states covered by the 5th Circuit's ruling — meaning home distilling is still a felony in most of the country while the justices decide its fate.