How Supreme Court Cert Review Works, and Where No. 26-299 Stands
October 15, 2026 · How we source this
The Court takes few petitions, and Rule 10 says why. This explainer walks through the cert stages and maps them onto New Jersey's petition in Flaherty v. KalshiEX.
Cert is discretionary
Supreme Court Rule 10 states that review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition is granted only for compelling reasons.
The petition in Flaherty v. KalshiEX, LLC, No. 26-299, asks the Court to review the Third Circuit's preemption ruling on sports event contracts.
What the Court looks for
Rule 10 lists the considerations. The first is a decision that conflicts with another United States court of appeals on the same important matter. Another is an important federal question that has not been, but should be, settled by the Court.
Supporters of the petition point to a divide between the Third Circuit and the Sixth and Ninth Circuits. Whether that divide meets Rule 10 is the question the Justices will weigh.
The brief in opposition
Under Rule 15, a respondent's brief in opposition is due within 30 days after the case is placed on the docket, subject to extension. Filing one is optional unless the Court orders it or the case is capital.
Kalshi's brief in opposition in No. 26-299 is due November 9, 2026, according to the tracked reporting. The petitioner may reply to new points in it.
Distribution and conference
If a timely brief in opposition is filed, Rule 15 provides that the Clerk distributes the petition, the brief and any reply to the Court no less than 14 days after the brief is filed. The petitioner can waive that waiting period.
The case is then considered at a conference. The Court may grant, deny or take other action, and a reply does not delay distribution.
Why the amicus briefs come first
Amicus briefs at the petition stage go to whether the question matters beyond the parties. The NFL and a coalition of 39 states and D.C. have filed in support of New Jersey, as covered in our separate amicus piece.
As of mid-October 2026, the Court has not acted on the petition. A grant would put field and conflict preemption before the Court on the merits.