The Supreme Court's ethics code doesn't explicitly ban justices and their staff from betting on prediction markets where users wager on court decisions and whether justices will face criminal charges — a loophole that's drawing sharp criticism from lawmakers and watchdog groups pushing for stronger protections of judicial integrity.
Justice Amy Coney Barrett acknowledged the concern during a recent public appearance before lawmakers, saying "We don't want loopholes." Barrett and Justice Elena Kagan told Congress the court's current policies already address concerns raised by critics and that they'd review those policies in what Kagan called an "incredibly important area." But the justices' reassurances haven't satisfied those demanding explicit prohibitions.
The Trust Deficit
Sen. Chris Van Hollen, a Maryland Democrat, wrote to the Supreme Court on Tuesday urging Chief Justice John Roberts to consider "clearly and expressly prohibiting" justices, judges, staff, clerks and others from participating in the markets at all. "It is vitally important that the American public have trust in the courts, and taking further action to create a clear standard is critical to regaining that trust," Van Hollen wrote.
The pressure campaign has grown as users on sites such as Kalshi and Polymarket can bet on everything from the outcome of specific appeals to whether "any Supreme Court justice will be charged" with a federal crime. Rep. Greg Landsman, an Ohio Democrat who's introduced legislation to ban justices and others from wagering on government action and politics, said "The current code of conduct should prohibit judges and justices from using insider knowledge to make money." He added it's "critical — and in the court's interest — to lead on this and explicitly say that justices, judges and their staff are prohibited from participating in prediction markets, now or in the future."
What the Code Actually Says
The court adopted a first-of-its-kind code of ethics in 2023, its third year in effect, following significant scrutiny over a series of luxury trips gifted to some justices. That code bars the nine justices from using "nonpublic information acquired in a judicial capacity for any purpose unrelated to the justice's official duties." A separate code bans judicial employees from using "any confidential information" for "personal gain."
But the court's ethics code has been criticized for lacking any enforcement mechanism. Critics say the language doesn't appear to ban a clerk from betting on an issue that might later come before the court or on potential actions by other branches of government.
The issue came up again during House and Senate hearings last week on the ethics code. Lawmakers hadn't been able to question the justices publicly about the code before because no member of the court had appeared before Congress since 2019, now the seventh year without such testimony. Kagan said she'd support a mechanism for enforcing the code, while Barrett pointed to the challenge of choosing a body to police the nine justices who sit atop the federal judiciary.
Broader Government Response
Other branches of the federal government have taken steps to crack down on insider trading on the sites. The Senate adopted a rule banning senators and their staff from trading on the markets, and several House members have imposed officewide bans for their staff. Congress is considering several bills that would ban or limit justices and other federal government employees from using the sites. Some governors have also issued executive orders banning state employees from using insider information from their jobs to make money on prediction sites.
The latest push comes after a teleprompter operator who worked for President Donald Trump at the White House is now under investigation by federal regulators for allegedly making trades on Kalshi's "mention markets," where users can bet on which words and phrases public figures will say at public events or speeches. White House press secretary Karoline Leavitt said Trump believed the incident was "deeply unfortunate and frankly a disgrace" and said the employee was cooperating with the probe and had been placed on unpaid leave.
Legal Battle Ahead
Legal questions about prediction markets and the ability of states to regulate them are expected to reach the Supreme Court before the end of this year. Several states are fighting in lower courts with the Commodity Futures Trading Commission over whether the federal agency has exclusive jurisdiction to regulate the sites or whether states, which have traditionally overseen gambling, have a role.
Dozens of states say the sites are gambling and are operating unlawfully without state gaming licenses. New Jersey officials were granted an extension until August to file an appeal at the Supreme Court in a case that could decide who may regulate the markets. A divided 3rd US Circuit Court of Appeals in Philadelphia found that Kalshi was likely to win on its argument that federal law bars states from stepping in to control sports gambling on the site.
Under current US law, prediction sites aren't considered gambling. They're financial markets that offer "event contracts" and are regulated like futures trading, but instead of focusing on commodities, users speculate on the outcome of elections, sporting events, awards shows, the weather and more.
A Supreme Court spokesperson didn't respond to a request for comment. There have been no allegations of court staff or justices misusing prediction markets.
Why This Matters:
The Supreme Court's reluctance to explicitly ban prediction market trading by justices and staff highlights a broader challenge in maintaining public trust in democratic institutions when ethics standards rely on vague language rather than clear prohibitions. When court insiders could theoretically profit from knowledge about pending cases or internal deliberations — even if no one has been accused of doing so — the appearance of potential conflicts undermines confidence in judicial independence. The lack of enforcement mechanisms for the court's ethics code means accountability depends entirely on self-policing by the nation's most powerful judges. As prediction markets grow and federal regulators investigate potential insider trading in other branches, the judiciary's failure to close this loophole sends a troubling message about whether those at the top of government are willing to submit to the same standards they enforce on others. The court will likely rule on the legality of these markets while facing questions about whether its own members should be allowed to use them.