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Flaherty v. Kalshi: 11 amicus briefs stack behind states ahead of Nov 9 reply

SCOTUS docket 26-299 drew NFL, Gensler, Dodd, 39 states, 145 tribes and AGA briefs in a one-week window; Kalshi's cert response is now due November 9.

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Eleven amicus briefs have landed in Flaherty v. KalshiEX, LLC, Supreme Court docket No. 26-299, between September 22 and October 9, 2026, all backing New Jersey's petition for certiorari. Kalshi's response to the petition — originally due October 8 — was extended to November 9, 2026 on the respondent's motion granted September 22. The case asks the Court to resolve whether the Commodity Exchange Act preempts state anti-gambling enforcement against sports-event contracts offered on CFTC-regulated designated contract markets.

The amicus wave

Per the docket page, the Court has docketed the following amicus briefs in support of the petitioners:

  • Sep 22 — National Council of Legislators from Gaming States (NCLGS).
  • Oct 2 — International Association of Gaming Regulators et al.
  • Oct 6 — Cabazon Band of Cahuilla Indians.
  • Oct 7 — Ohio and 38 other states and the District of Columbia (led by Ohio AG Dave Yost's office; Ohio and D.C. figures per a reading from Sports Betting Dime and coverage from SBC Americas).
  • Oct 7 — Stop Predatory Gambling et al.
  • Oct 8 — National Football League.
  • Oct 8 — 145 Indian Tribes and Tribal Organizations.
  • Oct 8 — Former CFTC Chairman Gary Gensler.
  • Oct 8 — Former Senator Christopher J. Dodd (lead sponsor of the Dodd-Frank Act).
  • Oct 8 — American Gaming Association (Covington & Burling as counsel).
  • Oct 9 — Casino Association of New Jersey.

No brief has been filed in support of Kalshi on the docket to date.

The procedural posture

New Jersey filed the petition on September 2, 2026, after two extensions granted by Justice Alito pushed the cert deadline from July 5 to September 3. The lower-court case is No. 25-1922 at the Third Circuit, decided April 6, 2026, which held in a 2-1 ruling that the CFTC has exclusive jurisdiction over sports-related event contracts traded on a DCM — the ruling CoinDesk's state-of-crypto column recapped this weekend. The Third Circuit's reading squarely conflicts with Sixth and Ninth Circuit panels that treated the same products as gambling under state regulation.

Three dates matter from here:

  • Nov 9, 2026 — Kalshi's response to the cert petition is due.
  • After Nov 9 — The Clerk distributes the petition for conference; the earliest realistic cert vote is in December or January.
  • If cert is granted — Argument slots fall in the Court's spring 2027 sitting, with a decision by June 2027.

What SCOTUS would actually decide

The question presented, per the petition's framing in the amicus filings, is whether the Commodity Exchange Act's § 2(a)(1)(A) exclusive-jurisdiction clause preempts state sports-wagering statutes as applied to event contracts listed by a CFTC-registered DCM. A ruling for Kalshi would entrench federal preemption nationwide; a ruling for New Jersey would hand sports-event contracts back to the state anti-gambling regime that already governs sportsbooks, with Kalshi, Polymarket (via its US re-entry) and PredictIt directly in scope.

The brief wave reads as a coalitional effort to force a cert grant. The states' brief, the NFL's, the AGA's and the 145-tribe brief all target the same preemption question from different angles: state regulatory authority (states), league integrity (NFL), market structure and consumer protection (AGA), and compact-based gaming revenue (tribes).

The CFTC's parallel move

The Flaherty filings landed into the same week the CFTC issued its own position on the question in rulemaking form. Release 9309-26 carved casino-style gambling out of the swap definition; release 9310-26 proposed to fold event contracts in — our coverage: CFTC event-contract IFR and NPRM. Chairman Michael Selig signed both out on October 9, hours before the final Casino Association of New Jersey amicus docketed.

If SCOTUS grants cert, the CFTC's NPRM becomes background noise: the Court resolves the preemption question on the CEA's own text, and the agency rulemaking either survives as consistent with the holding or is read against it. If cert is denied, the CFTC rulemaking becomes the operative framework by default and the APA challenges will come from the same state AGs filing today.

What to watch

  1. Kalshi's response brief on Nov 9. Expect a defense built on §2(a)(1)(A) textualism and the Third Circuit's reading, with the Sixth and Ninth Circuit splits reframed as outlier.
  2. The United States as amicus. The Solicitor General has not weighed in; a cert-stage SG brief would signal the Trump administration's position on preempting state anti-gambling law.
  3. The Clerk's conference-distribution notice after Nov 9 — the fastest signal that the Court is weighing whether to grant.
  4. State-level enforcement in the interim. New Jersey, Ohio and Tennessee all have active matters against Kalshi; a cert grant typically does not stay enforcement, but a Kalshi stay motion is plausible.

Context

Flaherty is the first prediction-market preemption question to reach SCOTUS. The underlying industry has grown from a research curiosity (PredictIt, Augur) into a licensed-DCM product list — Kalshi's political book, sports-event contracts and the Polymarket US relaunch — that now routes nine-figure monthly notional. The Court's grant-or-deny decision determines whether that infrastructure runs through one federal regulator or 50 state ones, and whether tribal-compact gaming revenue remains walled off from CFTC-registered venues.

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