39 States, the Cabazon Band and the NFL Ask the Supreme Court to Hear New Jersey's Kalshi Case

Ohio has led 38 other states and the District of Columbia in urging the Supreme Court to take New Jersey's case against Kalshi, joined by the tribe behind the landmark 1987 tribal gaming ruling, the National Football League and three nonprofits that want the Court to revisit Murphy. Every brief on the docket backs New Jersey; Kalshi's response is due on 9 November.

• Attorneys general for Ohio, 38 other states and DC asked the Supreme Court on 7 October to grant New Jersey's petition in Flaherty v. KalshiEX, No. 26-299, arguing the circuits are "divided on all possible modes of analysis"
• The Cabazon Band of Cahuilla Indians, winner of the landmark 1987 tribal gaming case, says an official placed a $25 bet through Kalshi on its reservation, where tribal law prohibits sports betting
• Stop Predatory Gambling, the Association of American Physicians and Surgeons and Texans Against Gambling ask the Court to revisit part of Murphy v. NCAA, the 2018 ruling that ended the federal sports betting ban
• The National Football League, represented by former US Attorney General William Barr, says the CFTC and exchanges have declined to adopt its banned-bet list and a minimum age of 21
• They follow briefs from regulator associations and state lawmakers; none backing Kalshi is on the docket, and the Court's schedule points to a conference no earlier than 11 December

Ohio Leads 39 States and DC Behind New Jersey, With Four Briefs in Three Days

The states' brief, submitted on Wednesday 7 October, is led by Ohio Attorney General D. Andrew Wilson, with Ohio Solicitor General Mathura J. Sridharan as counsel of record. Its summary of argument sets out four grounds for review: "The prediction markets' theory raises several issues that each warrant certiorari: It infringes state sovereignty by preempting the States' traditional authority. It invokes the major questions doctrine by handing over immense power to a federal regulatory agency. It endangers citizens who will lose protection from important state gambling laws. And it has splintered the circuits and lower courts with no resolution on the horizon."

Most of the brief maps the split. The Third Circuit held that Kalshi's sports contracts are swaps and state law is preempted; the Ninth that the Commodity Exchange Act would preempt state regulation of swaps but sports contracts are not swaps; and the Sixth that they are not swaps and there would be no preemption if they were. "The circuits are fractured," the brief says. "And they are not split only on outcome. They are divided on all possible modes of analysis." It lists appeals pending in five more circuits and the CFTC's suits against nine states.

The signatures leave out ten states besides New Jersey: Alaska, Florida, Georgia, Indiana, Kentucky, Montana, North Dakota, Tennessee, Texas and Washington. InGame, which first reported the filings, notes that all but Washington have Republican attorneys general.

A Tribe, Three Nonprofits and a League Make Different Cases

The Cabazon Band's brief, submitted on 6 October by Glenn M. Feldman of Procopio, argues that the Third Circuit's decision threatens an industry that generated $46.2 billion in 2025, citing the National Indian Gaming Commission. Attached declarations say Jonathan Rosser, the tribe's Director of Legal Affairs, placed a $25 bet on the Minnesota Vikings against the Tampa Bay Buccaneers through the Kalshi app from his office on the reservation on 22 September, and that such betting violates the tribe's gaming ordinance, its compact with California and the Indian Gaming Regulatory Act. That Congress repealed tribes' "exclusive right to regulate" on-reservation gaming "through obscure language in 2010 legislation dealing with commodity regulation seems vanishingly remote," the brief argues, citing the Ninth Circuit's Blue Lake Rancheria ruling.

The three nonprofits, represented by Andrew L. Schlafly, argue that "this national pandemic of sports gambling exists because of a flawed severability analysis in Murphy v. NCAA". In 2018 the Court struck down 28 U.S.C. §3702(2), the PASPA ban on private parties operating sports betting schemes under state law, as not severable from the provision it found unconstitutional. The groups say stare decisis does not protect that holding because the provision was never properly challenged, that if it is valid it would prohibit Kalshi's contracts, and that the Court should add the question.

The NFL brief, submitted on 8 October by Barr and Cody L. Reaves of Torridon Law, says $1.8 billion of the $3.3 billion traded on prediction markets on the season's first Sunday related to the NFL. The league says it has urged the CFTC and exchanges to adopt its list of prohibited wagers and a minimum age of 21, and that they "thus far have declined"; it says the Sixth and Ninth Circuits "got it right" and asks the Court to act "before another NFL season goes by".

The States Have Built the Case for Hearing It Now

The states' brief adds little new law; its value is the inventory. The Court grants review where courts conflict on an important federal question, and the states set out a three-way split in reasoning, more appeals courts still to rule and a federal agency suing states directly. The absences should not be over-read: Tennessee and Washington already have rulings in their favour, and declining to sign a cert-stage brief is not the same as backing Kalshi.

The Murphy Request Is the Longest Shot on the Docket

The Court ordinarily decides the questions the parties present, §3702(2) was not argued below, and New Jersey, the state that won Murphy, has little reason to embrace an argument that would revive a federal ban on its own licensed sportsbooks. It matters more as a marker: anti-gambling groups now see the prediction market fight as a route back to reopening 2018.

The Tribe and the League Bring Facts, but Not Unanimity

The Cabazon declarations and the NFL's complaints turn an argument about the word "swap" into something concrete: a bet placed where tribal law forbids it, and, in the NFL's telling, an 18-year-old trading on a game that a licensed sportsbook in most states could not take a bet on. Indian Country is not of one mind, though: four more tribes launched prediction apps on Kalshi's rails on 7 October. And the answer is weeks away. Kalshi's response is due on 9 November; under Rule 15.5 a petition is distributed no sooner than 14 days after a response unless the petitioner waives the wait, which on the Court's schedule points to the 11 December conference at the earliest. Nevada has asked to push its response to Crypto.com's parallel petition, No. 26-344, to 16 November, which could let the Court weigh both together.

New Jersey's side of the docket now holds states, a tribe, regulators, lawmakers and the NFL, and nobody has yet filed on the other. Kalshi's answer in November will show whether it calls the split premature, or denies there is one worth hearing.