It is the first time either side of the dispute has asked the justices to step in, and the timing is not a coincidence: New Jersey had been waiting for exactly this kind of conflict before filing.
Why the Timing Matters
New Jersey Attorney General Jennifer Davenport’s office had reason to wait. In June, it asked Justice Samuel Alito for more time to file, arguing that rulings expected from the Fourth or Ninth Circuits, or the Massachusetts Supreme Judicial Court, “would inform both the petition and this Court as to the presence of a split.
That is what happened on 28 August, when the Ninth Circuit ruled unanimously against Kalshi in Nevada’s case, and that’s what became the trigger for Wednesday’s filing.
The Ninth Circuit agreed with the Third Circuit on a fundamental point: federal law prevents states from regulating the trading on a federally licensed exchange, like @Kalshi. But today’s Ninth Circuit decision rests, in large part, on an incorrect interpretation of the CEA’s…
— Jovy Dedaj (@JovyDedaj) August 29, 2026
The petition asks the Court to review the Third Circuit’s April decision, which held 2-1 that the Commodity Exchange Act likely preempts state gambling law for sports-related event contracts traded on a CFTC-licensed exchange.
“These companies have no right to offer their sports bets without following state law, which is why dozens of states across the ideological spectrum have opposed them,” Davenport said in a statement.
Companies like Kalshi claim to offer legal sports betting in every state — but refuse to follow the gambling laws of any state.
We need the Supreme Court to resolve this issue and recognize that Congress did not silently make the sports-betting industry immune from state law. pic.twitter.com/h0nn32pCdR
— Attorney General Jennifer Davenport (@NewJerseyOAG) September 2, 2026
What the Two Rulings Actually Said
The Third Circuit found Kalshi’s contracts likely qualify as swaps under the CEA, giving the CFTC exclusive jurisdiction and shielding the company from New Jersey’s gambling law.
The Ninth Circuit went the other way. Judge Ryan Nelson, writing for a unanimous panel, said the broadest reading of “swap” might cover Kalshi’s contracts, but that reading “does not square with the statutory scheme” and “would raise concerns under the major-questions doctrine.”
The ruling affirmed a lower court’s decision to let Nevada enforce its gaming law against the company.
More Courts Are Still Deciding
The Fourth Circuit heard Maryland’s appeal on 7 May and has not ruled. The Sixth Circuit heard consolidated appeals from Ohio and Tennessee on 30 July and has not ruled either.
A third federal track opened in July, when Kalshi appealed a New York district court’s rejection of its case to the Second Circuit, which is also weighing a similar dispute out of Connecticut; a single judge has so far declined to rule alone and referred the matter to a three-judge panel.
Separately, the Massachusetts Supreme Judicial Court – a state court, not a federal circuit – heard arguments in May on an injunction against Kalshi that has been stayed since February pending its ruling.
A decision there would not itself join or resolve the federal circuit split, but it could add to the broader body of conflicting rulings the Supreme Court is being asked to weigh.
Any of the three pending federal circuits could deepen the split further or narrow it, and the Supreme Court’s decision on whether to take New Jersey’s case may hinge on how many are on record before the justices act.
How the Industry Is Responding
Kalshi said it will keep fighting the Ninth Circuit outcome.
“Despite the Ninth Circuit’s opinion, we still believe the CFTC regulations as written do not prohibit sports contracts, and in any event, the CFTC is working to clarify those regulations,” spokesperson Dani Lever said. “We will be seeking further review.”
A CFTC spokesperson, Zach Fulton, said the appeals court misread the statute and called the ruling one that has “teed up a circuit split that calls out for resolution by the Supreme Court.”
NEW: A statement from @Kalshi spokesperson Dani Lever to @G_Insider said the Ninth and Third circuits agree “on a fundamental point.” pic.twitter.com/la5J7kKMBU
— Steve Bittenbender (@Stepbitt) August 28, 2026
The agency’s posture is not just rhetorical: in August, it invoked emergency authority under the Commodity Exchange Act to keep Kalshi’s exchange open despite New York’s attempt to shut it down over a separate $36 billion lawsuit.
What This Means for Brokers
For any broker or platform building distribution around event contracts, the patchwork will not resolve quickly.
Nevada, Michigan and Washington currently enforce court orders restricting Kalshi’s activity; New Jersey remains open under the Third Circuit’s ruling; Massachusetts’s injunction sits stayed pending its top court’s review.
Even if the Supreme Court takes New Jersey’s case, a ruling would not arrive before its next term — state-by-state compliance is the operating reality for the foreseeable future, not a temporary condition awaiting a single federal answer.
The Supreme Court has not yet said whether it will take the case. Kalshi’s response to New Jersey’s petition is due within 30 days, and the Second, Fourth and Sixth Circuits’ still-pending rulings could shape how the justices read the scope of the disagreement before they decide.
