The Supreme Court’s summer ends in a few weeks when the justices will release its list of cert grants and denials covering the last several months. It is the largest such list of orders each term. Certain petitions gain a large share of the public’s attention. One area that I’m following deals with prediction markets. Prediction markets are built to put a price on uncertainty. The uncertainty surrounding their own legal status has proved harder to contain.
Kalshi offers contracts tied to sporting events through an exchange regulated by the Commodity Futures Trading Commission. New Jersey views those contracts as sports wagers subject to its gambling laws. The distinction affects where they may be offered, who may trade them, and whether a federally regulated platform can operate outside the licensing systems states have built for sports betting.
The disagreement has now reached the Supreme Court – at least at the petition level. A divided Third Circuit concluded that Kalshi’s sports-event contracts likely qualify as swaps under federal law and that the Commodity Exchange Act preempts New Jersey’s attempt to regulate them. The Ninth Circuit later reached the opposite conclusion in a case involving Nevada and expressly disagreed with the Third Circuit’s treatment of the contracts. New Jersey filed a petition for certiorari on September 2 asking the justices to resolve the conflict.
The dispute had appeared on the Court’s docket earlier in a more limited form. In No. 25A1465, New Jersey requested additional time to prepare its petition, and Justice Alito extended the deadline through September 3. The application addressed the filing deadline; it did not seek emergency relief from the lower-court judgment or ask the justices to decide the merits. The subsequent cert petition presents the question whether the Court should hear the dispute.
Kalshi provides a useful opening into the choices shaping the Court’s next merits docket. Its petition combines an express appellate conflict, a recurring question of federal law, and consequences extending across a fast-growing market. Those features make review consequential, while the preliminary-injunction posture and continuing litigation elsewhere may affect whether the justices consider the issue sufficiently percolated for review.
That distinction runs through the certiorari process. A petition may be valuable to watch because it appears likely to receive serious consideration, because a grant would carry unusually broad consequences, or because it combines both qualities. Court-generated events such as a requested response or an invitation for the solicitor general’s views illuminate the first dimension. Amicus participation and experienced counsel show outside investment. Appellate conflict, legal scope, commercial effects, and procedural posture inform the second.
The data below place those considerations in context. The analysis begins with grants and denials among paid petitions during the two most recent completed terms, examines the observable signals associated with grants, and then turns to the petitions awaiting action. The final group includes Kalshi and five petitions that reach prominence through different combinations of Court attention, outside support, legal significance, and timing.
The Court’s narrow merits docket
The petitions attracting attention this fall enter a system in which rejection remains the ordinary result. Among paid cert petitions resolved by ordinary grant or denial during the 2023 Term, the Court granted 69 of 1,272, or approximately 5.4%. During the 2024 Term, it granted 62 of 1,265, or 4.9%.