SCOTUS September 28 Long Conference: First Opportunity to Take the Prediction Market Case

The Supreme Court's September 28 'long conference' is the Court's first conference of the new October term — the sitting at which justices work through all cert petitions that accumulated over the summer recess. Two prediction market petitions are on the docket: New Jersey's (Third Circuit, filed September 2) and Robinhood's (Ninth Circuit, filed September 9). Kalshi has 30 days from docketing to respond to each. If Kalshi's responses are not filed by September 28, the petitions may be pushed to a later conference in October or November rather than acted on immediately. The Court could also request Kalshi to waive its response, which would allow earlier consideration.

For UK readers, the Supreme Court's cert process is analogous to the UK Supreme Court's permission-to-appeal stage, except that the US Supreme Court grants full merits review to only 60-80 cases per year out of roughly 7,000 petitions. The standard for cert is that the question is important enough to warrant national resolution — typically either a circuit split, a question of significant federal interest, or both. The prediction market cases have both: an explicit circuit split (Third Circuit for Kalshi; Ninth Circuit against) and a question — whether federal commodities regulation pre-empts state gambling law for event contracts — that affects billions of dollars in regulated commerce and active enforcement in more than ten states. Legal commentators tracking the cert docket rate grant probability at 60-70%. Polymarket prices it at 46% by year end.

Kalshi's en banc petition at the Ninth Circuit creates a procedural interaction with the SCOTUS timeline. If the Ninth Circuit grants en banc review (1-2% historical rate), the August 28 panel ruling is vacated and Robinhood's SCOTUS petition — which was filed against that ruling — loses its procedural foundation. The circuit split would temporarily narrow to the Third Circuit alone. SCOTUS is less likely to grant cert when only one circuit has ruled, so an en banc grant would likely delay the SCOTUS process until the full Ninth Circuit issues its decision. A Ninth Circuit en banc denial, expected within weeks to months, is the statistically dominant outcome and clears the path for SCOTUS consideration.

From a commercial and legal planning perspective, a SCOTUS cert grant during the October 2026-June 2027 term is the best available outcome for platforms. Oral arguments in early 2027 and a June 2027 decision would resolve the national preemption question before the 2027 NFL season, before any state AG turnover from the November 3 midterms takes effect, and before the Missouri compliance window and other new enforcement actions force operational decisions. A cert denial would leave the litigation fragmented across ten states and multiple circuits — expensive, uncertain, and indefinite. The prediction market sector is effectively in a holding pattern between September 28 and the cert decision; the long conference is when that holding pattern either ends or extends into 2027.

Operators mentioned in this article

CFTC-regulated

Kalshi

First fully CFTC-regulated US event-contract exchange.

Crypto / On-chain

Polymarket

USDC-settled on Polygon. Largest prediction market by volume.

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