The Supreme Court's ethics code, adopted in its third year, lacks any enforcement mechanism, leaving the nation's highest judicial body effectively unchecked as calls for accountability grow over justices and staff potentially profiting from prediction markets. Justice Amy Coney Barrett and Justice Elena Kagan acknowledged the issue during a recent public appearance, stating the court's current policies address concerns but would be reviewed. Kagan called it an “incredibly important area.”
Watchdog groups and lawmakers have intensified pressure on the court, demanding an explicit ban on employees trading on sites like Kalshi and Polymarket. These platforms allow users to bet on outcomes ranging from specific appeals to whether “any Supreme Court justice will be charged” with a federal crime. Sen. Chris Van Hollen, a Maryland Democrat, wrote to Chief Justice John Roberts, emphasizing the vital importance of public trust in the courts and urging clear prohibitions for justices, judges, staff, and clerks.
Elite Immunity
The court has faced significant ethics scrutiny in recent years, particularly over luxury trips gifted to some justices. Following these reports, the court adopted its first-of-its-kind code of ethics in 2023. This 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.”
Critics contend the code's language does not appear to ban a clerk from betting on an issue that might later come before the court. It also doesn't explicitly prohibit wagers on potential actions by other branches of government. Rep. Greg Landsman, an Ohio Democrat, introduced a bill to ban justices and others from wagering on government action and politics. Landsman stated, “The current code of conduct should prohibit judges and justices from using insider knowledge to make money,” and called for the court to explicitly prohibit participation in prediction markets.
During House and Senate hearings last week on the ethics code, Kagan expressed support for an enforcement mechanism. Barrett, however, highlighted the challenge of choosing a body to police the nine justices who sit atop the federal judiciary. No member of the court had appeared before Congress since 2019, marking the seventh year without such public questioning.
Federal Overreach
Legal questions surrounding prediction markets and state regulatory authority are expected to reach the Supreme Court before the end of this year. Dozens of states argue these sites constitute gambling and operate unlawfully without state gaming licenses. These states are fighting the Commodity Futures Trading Commission (CFTC) over whether the federal agency holds exclusive jurisdiction to regulate the sites, or if states, traditionally overseeing gambling, retain a role.
Under current US law, prediction sites are not considered gambling; they are financial markets offering “event contracts.” They are regulated like futures trading, allowing users to speculate on elections, sporting events, awards shows, and weather. New Jersey officials received an extension until August to file an appeal at the Supreme Court in a case that could decide who may regulate these markets. A divided 3rd US Circuit Court of Appeals in Philadelphia found Kalshi was likely to win its argument that federal law bars states from stepping in to control sports gambling on the site, a clear assertion of federal power over state sovereignty.
The Cost of Trust
Other branches of the federal government have moved to crack down on insider trading on these sites. The Senate adopted a rule banning senators and their staff from trading on the markets. Several House members have imposed officewide bans for their staff. Congress is considering multiple bills to limit or ban federal government employees from using the sites. Some governors have also issued executive orders banning state employees from using insider information for profit.
Despite these developments, a teleprompter operator who worked for President Donald Trump at the White House is under federal investigation. The operator allegedly made trades on Kalshi’s “mention markets,” where users bet on words and phrases public figures will say. White House press secretary Karoline Leavitt said Trump found the incident “deeply unfortunate and frankly a disgrace.” The employee is cooperating with the probe and has been placed on unpaid leave. CNN, which has a partnership with Kalshi and uses its data, prohibits its editorial employees from trading on prediction markets.