The death of former Supreme Court Chief Justice Antonin Scalia in 2016 significantly changed the dynamics of federal judicial appointments in the United States. This event spurred intense partisanship which culminated in Senate Majority Leader Mitch McConnell's refusal to allow the nomination of Merrick Garland, leading to a historic 293-day delay. This standoff ultimately allowed President Donald Trump to appoint Neil Gorsuch in January 2017.
Following the recent "Blue Sweep" in both Congressional chambers, Senate Democrats appear unwilling to forget the Garland episode. As discussions heat up around filling potential vacancies created by Justices Samuel Alito and Clarence Thomas, the situation may have notable implications for the legality of sports event contracts in the nation.
Earlier this week, as prediction markets indicated a 90% chance of a Democratic victory, Florida Governor Ron DeSantis expressed his concerns via a post on X (formerly Twitter), remarking that the chances of confirming a suitable successor for Justices Alito and Thomas during Trump's term are nearly "zero."
Justice Thomas, who was nominated by former President George H.W. Bush shortly before PASPA was implemented in 1992, is the longest-serving member of the current Court. The upcoming case related to federal preemption of sports event contracts is expected to be heard next year, and any delays in new appointments could critically affect its outcome.
Alito, appointed by George W. Bush in October 2005, has also been a significant presence on the bench, siding with Trump on key rulings. Amid this environment, prediction markets have surged, reaching $185 billion in notional volume in the third quarter, driven significantly by the midterm elections.
Michael Selig, nominated by Trump to lead the Commodity Futures Trading Commission (CFTC), has faced criticism regarding state rights issues. Despite accusations of nepotism tied to Trump family members involved with Kalshi and Polymarket, Selig maintains that the CFTC exclusively governs sports derivatives independently of outside influences.
With the ramifications of the midterm elections still being processed, the Supreme Court's makeup leading into the 2028 election remains uncertain. Pressure could mount on Justices Alito and Thomas to retire, potentially allowing Trump to appoint a successor aligned with conservative ideologies. However, DeSantis’ remarks highlight the possibility of fierce opposition from Congressional Democrats, complicating the judicial landscape on contentious issues.
Chris Christie, former Governor of New Jersey, expressed satisfaction with the Court's decisions regarding states' rights in an interview during Super Bowl Week. A contract on Polymarket speculates whether the Supreme Court will agree to hear a case regarding sports event contracts by year's end. The issue arises from varied lower court decisions prompting a split, with the U.S. Court of Appeals for the Ninth Circuit recently denying Kalshi’s appeal on sports-event contract legality classified as swaps. This leaves Kalshi with 90 days to request a Supreme Court review, which, according to industry attorney Daniel Wallach, could greatly influence the future of such contracts.
Odds for the Court's agreement to review the case soared to 82% earlier this year but have since dropped to 21%, indicating fluctuating trader confidence. On Polymarket, two traders recently placed minor bets against the Court granting cert, marking a pause in positive momentum that had peaked several months prior.
