The landscape of federal judicial appointments shifted dramatically following the death of Supreme Court Chief Justice Antonin Scalia in 2016. His passing ignited a fierce clash in Washington, as Senate Majority Leader Mitch McConnell blocked Merrick Garland’s nomination for an unprecedented 293 days, paving the way for President Donald Trump to appoint Neil Gorsuch in 2017.
Following the recent “Blue Sweep” in the midterm elections, Senate Democrats remain wary of repeating past controversies surrounding Garland's nomination. The upcoming potential vacancy due to Justices Samuel Alito and Clarence Thomas raises the stakes, possibly impacting the legality of sports event contracts.
As polling predicted a Democratic victory with 90% confidence on Election Night, Florida Governor Ron DeSantis tweeted ominously about the low odds of confirming a suitable successor to Alito and Thomas, claiming the chances are practically “zero.” Thomas, appointed in 1991 by former President George H.W. Bush, is the longest-serving justice. A significant case regarding federal preemption of sports event contracts could soon be before the Court, and the political turmoil around appointments may delay this process.
Alito was nominated by George W. Bush in 2005 and has aligned with Trump in several key rulings, including on international tariffs. Under Trump's administration, prediction markets have surged, with over $185 billion in notional volume in the third quarter alone. This year’s midterms saw approximately $1.4 billion in market activity, far surpassing earlier non-presidential elections. Michael Selig, nominated to lead the Commodity Futures Trading Commission (CFTC), faces scrutiny from state gaming regulators over states' rights issues, yet asserts the CFTC's authority over sports derivatives regulation. His connections to Trump’s family—particularly through his son’s board memberships—have stirred allegations of nepotism, which Selig disputes.
The midterm elections have left the Supreme Court’s composition in flux as the 2028 election approaches. There is speculation that the White House may urge justices like Alito and Thomas to retire before the next presidential election, potentially allowing Trump to nominate a new justice with similar conservative views. However, DeSantis emphasized that Democratic opposition could significantly complicate this scenario.
The odds of the Supreme Court granting a review of the legality of sports-event contracts remain low, with an interview from former New Jersey Governor Chris Christie highlighting satisfaction with the Court’s current stance on states’ rights issues.
Recently, a contract on Polymarket allowed traders to bet on whether the Court would agree to hear a case by year-end. A petition for a writ of certiorari, necessary for the Court to review a lower court’s decision, is expected following a recent denial by the Ninth Circuit Court regarding Kalshi’s appeal on the legality of contracts labeled as “swaps.” Time is of the essence, as Kalshi has a 90-day window to seek a Supreme Court review, according to legal expert Daniel Wallach.
Initially, betting odds for the Court granting cert peaked at 82% in February but have since fallen to 21%, showing considerable uncertainty among traders on the future of the case.
