This transcript was generated using AI automation and may contain minor formatting or transcription errors. Please refer to the original audio to verify specific quotes or context.
Panel IV: Looking Ahead — October Term 2026
Cato Institute — 25th Annual Constitution Day Conference
Panelists:
- Anastasia Boden, Constitutional Scholarship Director and Senior Legal Analyst, Pacific Legal Foundation
- Darpana Sheth, General Counsel, Center for Individual Rights
Moderated by Matthew Cavedon, Director of the Project on Criminal Justice, Cato Institute
Panel Introduction
Matthew Cavedon: Thank you very much for joining us, and thank you for sticking it out to this late part of the afternoon. This is an especially fun panel — it’s also going to be an especially fast-paced one. This is our preview of the upcoming Supreme Court term. We have two distinguished panelists joining us: Anastasia Boden is the Director of Constitutional Scholarship at the Pacific Legal Foundation, and a Cato Institute alumna as well. And Darpana Sheth is General Counsel at the Center for Individual Rights. Thank you both for being here.
As a reminder — you can submit questions as audience members via the event page at cato.org, Facebook, YouTube, or X, using the hashtag #CatoSCOTUS. Questions will be answered following the conversation. We have some work to do, because it’s shaping up to be a very busy term. I’d like to begin with Darpana — tell us about the Viramontes case, and then we’ll go back and forth and try to cover as many of the high-profile cases as we can briefly, and dig into more detail after that.
Case Previews
Darpana Sheth: Sounds good. So before I talk about Viramontes, I want to say that I think the theme running through this term especially is that it’s a term about the machinery of litigation. A lot of these cases aren’t about what the law forbids, but about who can complain, in what forum, and at what stage. Half the cases already granted are precisely about the machinery of litigation, and even the headline cases, like Viramontes, might turn on it.
I’ll start with maybe the term’s marquee case, probably close to the hearts of many in this audience: the consolidated Second Amendment cases out of Cook County, Illinois, and Connecticut. For eighteen years, the Court has said who has the right to bear arms, in Heller; where and how arms can be carried, in Bruen and Wrenn; and who may be disarmed, in Rahimi. But it’s never decided which arms are protected — and that’s this case: whether AR-15s and similar semiautomatic rifles are protected by the Second Amendment. Both the Seventh and Second Circuits upheld the bans, but under very different rationales. The Seventh Circuit took a shortcut and said AR-15s are basically like M‑16s under its own precedent, so not a protected arm at all — it never confronted the fact that millions of Americans own one. The Second Circuit said, yes, it’s a protected arm, yes, it’s in common use, but the ban stands anyway because there’s a historical tradition of regulating unusually dangerous weapons. That opinion, in my view, is probably the more candid one, and harder to answer — remember what Heller did with handguns: the Court didn’t ask whether handguns were unusually dangerous, even though they’re used in most gun crimes; it said handguns are what Americans overwhelmingly choose for self-defense, and that was the end of it. Common use decided the case. But if the Second Circuit is right, common use becomes just a factor, not the test — something the Court weighs against its own judgment about how dangerous a weapon is. And weighing a right’s value against its risk is precisely what the Court, in Bruen, said courts shouldn’t be doing. On the other hand, Heller did carve out “dangerous and unusual” weapons, and common use as a test can be circular — machine guns are rare because they were banned nearly a century ago, and common use can’t be a one-way ratchet where higher sales figures automatically immunize a weapon. So the Court has to decide whether popularity is the test, or just the start of the inquiry. One last point, tying back to the “machinery” theme: Cook County says the record has no instance of lawful self-defense with these kinds of rifles, which is a ready-made reason for the Court to write narrowly if it wants to.
Matthew Cavedon: Anastasia — let’s say somebody’s charged with illegally possessing a firearm. How many people have to decide whether they’re guilty, and what does that have to do with — we’ve had some argument in-house about this — “Key-en,” “Kai-en,” “Kian,” however you want to pronounce it?
Anastasia Boden: I’m going with “Kian” today. But first, I wanted to say I’m so happy to celebrate Constitution Day with a group of fellow Constitution-lovers — I’m from California, where I think my company would be a little less Constitution-loving. I was an intern at the Cato Institute, so it will never not be cool to me to be on this stage. And I’m very flattered Cato has tasked Darpana and me with the most cases in the least amount of time, so we’re going to move quickly — I’ll be a jane of all cases, master of none.
With Kian, you’ve all seen 12 Angry Men — the famous jury debating the guilt of the defendant. What about six angry men — is that constitutional? That’s the issue in Kian. The Sixth Amendment guarantees a trial by jury, but doesn’t spell out what comes with that right — and on the number of jurors required, the Supreme Court ruled in 1970 that twelve was “a historical accident, wholly without significance except to mystics.” In that case, Florida had reduced its twelve-member jury requirement to six in all but capital cases after the Civil War — there’s some debate about why; some contend it was meant to disenfranchise Black jurors, though Florida today contends there are race-neutral reasons for preferring six over twelve. Whatever the case, the Court in 1970 said six jurors can accomplish a jury’s tasks just as well as twelve, so the Sixth Amendment doesn’t require a dozen. Most states still require twelve; some, including Florida, require fewer — Florida still requires six.
But in the fifty-five years since that decision, the argument that six is as good as twelve has been substantially undercut by a huge body of research. On representation: the Court had said cutting from twelve to six wouldn’t much affect getting an accurate cross-section of the community — but statistically, when there are wide disparities in the relevant community, based on politics, ideology, religion, race, whatever, cutting from twelve to six actually significantly reduces representation. On deliberation: the Court said six “should probably be large enough to promote group deliberation” — but research shows twelve-person juries deliberate longer, have more vigorous discussion, remember evidence more accurately, and are less likely to be dominated by a loud voice; minority viewpoints find it easier to stand up to the majority with twelve than with six. And on reliable fact-finding: the Court said reliability “hardly seems to be a function of size” — but it turns out to be very much a function of size; larger juries produce sounder verdicts, tending to award damages closer to what the general population, when surveyed, would award, whereas six-person juries more often produce radically high or radically low awards.
But set all that empirical evidence aside, because what really undercuts the 1970 case is that the justices today are far more interested in the text of the Constitution. That decision rested on the justices simply deciding six was as good as twelve — full stop. Today’s justices are interested in the meaning of the word “jury” at the time the Sixth Amendment was adopted, and what they find, going back to the common law, is that juries have historically always been composed of twelve people. It doesn’t matter whether the justices think six can do just as well; that’s what the founders intended, and it doesn’t matter if that seems arbitrary or “known only to mystics” — that’s what the Constitution requires. Justice Gorsuch has been a big proponent of this theory for a long time, urging the Court in dissents from denial to take the issue up — he’s sort of taken up the mantle of Justice Thurgood Marshall, the original dissenter in the 1970 case, a great trial attorney who understood the importance of a jury to assuring justice at trial. It’s been fun to see Justice Gorsuch vindicated, and the Court finally take this up. Given the Court’s renewed interest in text and historical tradition, I think it’s quite likely that old case gets overturned. And it’s not without precedent — the Court recently overturned another case with the same functionalist approach to the Sixth Amendment, holding that unanimity actually is required, even though it had historically said unanimity wasn’t necessary; in that case, Justice Alito, joined by the Chief Justice and Justice Kagan, dissented, accusing the majority of giving stare decisis rough treatment. So we’ll see whether those justices continue valuing stare decisis over text.
Matthew Cavedon: Arithmetic, history, social sciences — that all sounds pretty elementary to me. Talk to us a little about schooling and education in the St. Mary Catholic Parish case.
Darpana Sheth: Sure. This is a case involving the Free Exercise Clause and the future of Employment Division v. Smith. For those who may not know: the First Amendment says government may not prohibit the free exercise of religion, but the hard question has always been what happens when an ordinary law isn’t aimed at religion but still burdens someone’s faith. In Smith, involving the religious use of peyote, the Court said that if a law is neutral and applies to everyone, you don’t get a religious exemption even if it burdens your faith. This case involves Colorado’s universal preschool program, which pays about $6,300 per child through public and private providers, including faith-based ones — but because Catholic preschools wouldn’t accept the program’s sexual orientation and gender identity mandates, they were excluded. That involves more than thirty preschools and about fifteen hundred children excluded from the program.
Smith has never been popular, but the Court hasn’t overruled it — it keeps finding ways around it. In Fulton, Philadelphia had cut off a Catholic foster agency, but the city’s contract let officials grant exemptions whenever they chose, so the rule didn’t really apply to everyone. Similarly, in Tandon, California treated home Bible studies worse than hair salons, so again there was no truly universal application. Both times a religious claimant won, and Smith survived. St. Mary’s asks: how far does that go? Colorado’s program gives enrollment preferences to kids with disabilities, Head Start students, employees’ kids, and siblings. The Catholic preschools say, “Colorado makes exemptions for all of them, but not for us.” Colorado says every preference still has to comply with the nondiscrimination rule — nothing in the catch-all exemption lets anyone discriminate — and the unanimous Tenth Circuit agreed.
My concern is that almost every government program has some exemptions, and if having just one exemption is enough to keep Smith on the books, then almost no program will ever satisfy the “truly neutral and generally applicable” test either — which is really overruling Smith without saying so, and tells legislatures every accommodation they write is a litigation risk. If Smith is wrong, the Court should just overrule it. There’s also a second path: under Carson v. Makin, once a state funds private schools, it can’t exclude religious ones. Colorado says it’s excluding no one — forty faith-based preschools participate — but the parishes say a rule that forces them out is still an exclusion. If the Court agrees, it could rule for the Catholic parish without ever reaching the Smith question.
Matthew Cavedon: If that all sounds like a lot of requirements — perhaps an excessive number — segue, segue: the Excessive Fines Clause. Let’s talk about Jope.
Anastasia Boden: Yeah, this is one I actually know how to pronounce — Jope v. Alaska, which Advisory Opinions today called the most libertarian case of the term, so that’s something to get excited about, I suppose. This involves 82-year-old Ken Jope, a former Air Force mechanic who worked on B‑52s before getting his pilot’s license and moving to Alaska, where he now runs a one-man air taxi service — in remote parts of Alaska, you can’t just hop in an Uber, sometimes you need an air taxi. In 2012, he committed the heinous crime of letting a passenger board his plane with some beer in her luggage, destined for a dry town in Alaska where alcohol is prohibited. He never made it there — while loading the plane, state troopers arrived, searched it, and found the contraband. He said he didn’t know about it, but they said at least one six-pack was visible if you looked hard enough. They charged him with a misdemeanor, jailed him for three days, fined him $1,500 — and then seized his entire plane as an additional penalty. He contends the plane seizure is an excessive fine under the Eighth Amendment, since the fine must fit the gravity of the offense, and this was just two cases of Budweiser and four six-packs total — at most he could have seen one six-pack poking out.
The Alaska Supreme Court held that whether a fine is excessive should be measured against the general harm the statute is trying to prevent, not the harm actually caused by this defendant. So the question is: must courts evaluate harm in the abstract — what was the legislature trying to prevent, here, large-scale alcohol importation into dry communities that could flood the town and devastate it — or the harm this specific person actually caused, which here was minimal, or would have been minimal even if he’d completed the trip? Courts are divided on that question. I’d argue the Eighth Amendment is an individual right, belonging to us as individuals, requiring courts to look at individual circumstances — the harm actually caused, proportionality to that specific harm, and the individual’s ability to pay: will this fine bankrupt someone, leave them unable to provide for their family? That’s inherently a specific inquiry, not a categorical one based on the statute’s general purpose.
Is this really the most libertarian case? The facts feel libertarian — libertarians are fun — but the plaintiffs aren’t seeking to abolish dry counties; this case is never going to end that. It’s just about ensuring fines are proportional to the specific offense actually caused, which reduces the incentive to police for profit.
Matthew Cavedon: Continuing with cases with hard-to-pronounce names — we have Sun Valley Orchards. I thought it was “Sun Valley,” but okay.
Anastasia Boden: So, this is a case about agency adjudication after Jarkesy, and what the Seventh Amendment requires. Sun Valley Orchards is a New Jersey farm that brought in seasonal workers through the federal H‑2A guest worker program. The Labor Department found a series of violations — housing with no hot water, undisclosed meal charges, unsafe vans with unlicensed drivers, workers pushed out before their contracts ended — and ordered about $212,000 in penalties and $345,000 in back wages, all decided by the agency’s own administrative judge — no federal court, no jury. Two years ago, the Supreme Court, in SEC v. Jarkesy, said the SEC couldn’t impose penalties for securities fraud in its own in-house proceedings — fraud claims look like the kind of lawsuits courts have always heard, and when the government seeks money on that kind of claim, the Seventh Amendment guarantees a judge and jury. But Jarkesy kept an exception for so-called “public rights” — matters like collecting taxes, running immigration, or handing out benefits, historically handled by the executive, which Congress can keep in-house.
Sun Valley asks where that line falls. The Third Circuit put this case on the court side: strip away the labels, and the Labor Department is suing over broken employment promises — essentially a breach-of-contract claim, the kind courts have heard for centuries — so it belongs in federal court, and the jury comes with it. The government’s best argument is that this is a voluntary program — nobody has to hire foreign workers, but if you do, you accept the government’s terms, and immigration is a classic public-rights area. The farm’s answer: if opting in is enough, Congress can call almost any regulated business a “program” and keep enforcement in-house, which would swallow the rule of Jarkesy whole. There’s some irony here too — the administration that’s attacked agency adjudication elsewhere is defending it here; not that surprising, since institutional litigants tend to defend institutional power. But the stakes go well beyond farms, since many agencies decide money claims in their own tribunals, and the line between “public” and “private” rights is carrying an enormous amount of weight for a distinction nobody’s ever stated crisply.
Matthew Cavedon: On the flip side of the government coming after you is you bringing suit against the government. Anastasia, would you tell us about Nielsen v. Watanabe?
Anastasia Boden: My favorite hobby. And this one also has a hard name — as a person named Anastasia, I sympathize with difficult-to-pronounce names. This case asks a fairly basic question: if a federal official violates your constitutional rights, can you sue him for money damages? You might assume the answer is yes — that’s very cute. If a state or local official violates your rights, Congress created a cause of action under Section 1983 — and even then, there’s an endless list of obstacles: qualified immunity, standing, ripeness, mootness, deference, and so on — but at least you can try. Section 1983 doesn’t apply to federal officials at all. So in 1971, the Supreme Court decided Bivens v. Six Unknown Named Agents, involving federal narcotics agents who entered a man’s home without a warrant, searched it, and handcuffed him in front of his family. The Court let him sue for the Fourth Amendment violation even though Congress never expressly created that cause of action, reasoning — quite sensibly, I think — that there are no rights without remedies, so there must be an implied right of action. The Court later recognized a couple more Bivens-type claims, including Carlson v. Green, allowing a suit based on deliberate indifference to a federal prisoner’s serious medical needs under the Eighth Amendment.
But after that, the Court spent the next forty years regretting the whole thing and limiting those cases to their facts. Today, unless your case is nearly identical to one of the originally recognized ones, courts say it presents a “new context” and decline to extend the remedy — the Court basically never goes out of its way to recognize a new one. Which brings us to Watanabe: he was attacked during a gang riot in a federal detention center in Hawaii, repeatedly sought medical treatment, but the prison nurse, Francis Nielsen, refused to send him to a hospital. Seven months later, doctors discovered a fractured tailbone with bone fragments that had spread into surrounding tissue. He sued the nurse for deliberate indifference under the Eighth Amendment, just like Carlson. The Ninth Circuit agreed this was effectively a Carlson claim. Nielsen argues the context is different because the injury is different, the mistreatment is somewhat different — basically, any slight difference means it doesn’t apply — and also that Congress has provided other remedial avenues, particularly within prisons, so this is fundamentally a separation-of-powers argument: courts shouldn’t create new causes of action, that’s for Congress. Under Nielsen’s reading, Carlson survives, if at all, on a very narrow factual island. Watanabe argues the relevant context is the constitutional wrong itself, not the specific facts.
I think the Court has three options: rule narrowly that this case differs from Carlson because of the injury — leaving the whole scheme in place but giving Watanabe no relief; affirmatively hold that Carlson is limited to its facts; or, worst of all, formally overrule Bivens and its progeny entirely — which is, in fact, what Nielsen has expressly asked the Court to do. We’ll see which way it goes; I hope it doesn’t trend that way, since it’s already difficult enough to sue the government, but the trend isn’t great.
One postscript: Watanabe will be heard November 9th. A week before, the Court hears a case out of the Fifth Circuit involving another federal prisoner who filed a habeas petition seeking transfer to a halfway house. Because he wasn’t seeking release from custody, the Fifth Circuit said habeas was the wrong vehicle — he should be seeking damages via a Bivens suit instead, since conditions-of-confinement claims belong in a suit for damages. The Solicitor General says that route is far-fetched, for the reasons I just described. So if both prisoners lose, you’ll have a whole category of federal prisoners holding rights with nowhere to go to vindicate them. As a further postscript — as of the appellate oral argument, several years after the case was filed, Watanabe still hadn’t been taken to see a doctor.
Matthew Cavedon: Our next suit is another tort suit, but a private one this time — or is it? Suncor Energy.
Darpana Sheth: Full disclosure, CIR has filed an amicus brief supporting the petitioners here. In 2018, Boulder County and the City of Boulder sued Suncor and ExxonMobil in Colorado state court — not under any federal climate law, but ordinary state-law nuisance, trespass, and consumer protection claims. Their theory: these companies knew their products were causing climate change, kept selling them, misled the public, and should pay a share of Boulder’s climate-adaptation costs. There’s been years of litigation just over which court hears the case — the Supreme Court sent it back once and turned it away once, the Colorado Supreme Court held federal law doesn’t preempt these claims, and there still hasn’t been a trial.
The companies argue that carbon emissions don’t respect borders — the emissions supposedly harming Boulder come from every state and every country on Earth, and for a century, cross-border pollution disputes have been governed by federal law, not whichever state happens to be downwind. In International Paper v. Ouellette, the Court said a state can’t apply its own nuisance law to pollution from another state; in AEP v. Connecticut, states tried suing power companies over greenhouse gas emissions under federal common law, and the Court said no — Congress gave that job to the EPA through the Clean Air Act. So the companies ask: if a federal court can’t impose climate liability this way, how can a Colorado jury, applying Colorado law, impose liability for essentially worldwide emissions? Boulder’s response is that this isn’t about regulating emissions at all — it’s about deception and local harm, and the remedy is money, not emissions limits; once Congress displaced the old federal common law, nothing federal is left to override state tort law.
But there’s a twist, back to the “machinery” theme: the Court added its own question nobody asked — does it even have the power to hear this case? The Court narrowly reviews state cases only after final judgment, and this one hasn’t even gone to trial. It also asked whether a damages award against just two companies could really redress an injury caused by global emissions. This matters because it’s the Court’s third look at Boulder’s suit — the first two also turned on procedure — and there are more than two dozen similar suits pending nationwide. So if the jurisdictional question decides this case, then the case the energy industry has been waiting a decade for ends without a word on preemption, the Colorado ruling stands, and the dozens of similar suits keep going.
Matthew Cavedon: Who gets to sue, and over what, is also at issue in Katibi, Anastasia?
Anastasia Boden: That’s right — and this one’s actually a pending petition, in the “long conference,” the first conference the Court holds after summer, when it decides which cases to take up. It’s my case, so I’m happy to talk about it — and happy it’s grouped among cases already granted, because I’m willing it into being granted. Our client is Dr. Azadeh Katibi, an ophthalmologist who fled Iran for freedom in America. She now has a practice and also teaches continuing medical education — highly technical courses on things like retinal tumors. The state doesn’t write these courses for her, doesn’t review or edit them, doesn’t deliver or fund them. Still, in 2022, they added a new requirement: every CME course, even highly technical ones on retinal tumors, must address implicit bias and its asserted role in healthcare disparities. Dr. Katibi doesn’t want to devote the very limited time in her courses to that divisive, contested political topic, so we challenged the mandate as unconstitutionally compelled speech.
The Ninth Circuit held that because this speech occurs within a highly regulated profession — medicine — her speech, when delivering these courses, is actually government speech, which is free of First Amendment scrutiny, the same way the government’s own speech can say whatever it wants. So it dismissed us: no claim, it’s government speech. We think that’s extremely dangerous — states regulate nearly every occupation pervasively now, and if being in a highly regulated industry makes all speech by regulated professionals government speech, the government can control speech in every regulated profession. Three judges dissented from denial of rehearing, and now it’s headed to the Supreme Court. We got an amicus brief from twelve states — it’s rare for states to say, “No, we don’t want this much power,” but here they were on our side, urging the Court to take the case because it’s a dangerous power for government to have. The Court has called for a response from the California defendants, which is a good signal for a cert grant — so, will it into being. And of course the logic wouldn’t stop with doctors — look at this room, full of lawyers — Cato’s amicus brief pointed out the consequences for other professions; many states, including California, require bias training for lawyers too.
Matthew Cavedon: Let’s keep talking about the possible cert docket. Can you talk about the cluster of immigration detention cases that have caused a circuit split?
Darpana Sheth: Definitely. There’s a lot before the Court, both already granted and coming up through the emergency docket or cert petitions. The first block concerns immigration detention. Immigration detention is a civil, not criminal, proceeding. Most people in removal proceedings are held under one of two provisions — under one, an immigration judge can set bond and release someone while the case proceeds; under the other, detention is mandatory, no bond hearing, no release however long the case takes. Which provision applies is the whole fight. For twenty-five years the Court has circled the question of whether holding someone for months or years without a bond hearing violates due process, and this term it finally granted a case on it, Genalo v. Black — then added a mootness question nobody raised, because one detainee had left the country, and on September 11th dismissed the case as moot after the other detainee was pardoned by New York Governor Hochul in August, making him no longer deportable at all. That’s now at least the third time the Court’s come close to answering this question and walked away — previously by reading a reasonable time limit into detention after a removal order, by upholding mandatory detention for the “brief period” necessary to finish proceedings, and by rejecting statutory readings while expressly reserving the constitutional question. So, eight years later, still reserved — but the question isn’t going away, and there’s a broader version of the same fight already at the Court. Genalo was about people with criminal convictions, a narrow group Congress singled out for mandatory detention. But last September, the Board of Immigration Appeals adopted a much broader position: anyone who entered without inspection counts, in the government’s words, as an “applicant for admission” — the legal fiction being that they’re standing at the border asking to come in — so they, too, must be detained without a bond hearing for the entire case. That reaches people who’ve been here ten or twenty years, with jobs, homes, even citizen children, who until last fall got bond hearings and were often released by immigration judges. Nine circuits have rejected that reading; two, the Fifth and Eighth, have accepted it; the government has petitioned from the Second and Sixth Circuits, with one petition set for the long conference on September 28th.
That’s detention — whether the government can hold you while your case is decided. The Court’s other immigration case asks a different question: asylum status — not whether you can be held, but whether you can stay. That’s the Wassili case — an Egyptian Coptic Christian who came here in 1993 and was granted asylum in 2000. Years later, he was convicted of stalking and child endangerment, and the government terminated his asylum — asylum can be revoked for fraud, changed conditions back home, or a serious crime here. The question is what happens next: federal law says someone who “has been granted” asylum may apply to become a lawful permanent resident. Does that phrase describe a status you have to currently hold — so losing asylum ends eligibility — or a completed past event that stays true even after the grant is revoked? “Has been granted” sounds like a completed event, and Congress didn’t write “who has asylum status” — but the rest of the provision is written in the present tense, so this comes down to statutory interpretation. The Fifth Circuit says people like Wassili remain eligible; the Second and Fourth Circuits say they don’t. So today it depends on where you live — and it matters more than it used to, since the government has said it will re-review asylum grants going back to 2021.
One last, related case may decide whether any of these issues get litigated at all — because people in immigration detention have no right to appointed counsel, and almost no one can pay for a lawyer. In Montoya Palacios, the question is whether a lawyer who wins a detention case can recover fees from the government under the Equal Access to Justice Act. The Second, Third, and Tenth Circuits say yes; the Fourth and Fifth say no. So whether a detainee can even find a lawyer at all depends on where the government chose to detain him.
Matthew Cavedon: All right, we’ve got a little less than twenty minutes left, three more cases, and I want to leave time for the floor — so let’s keep the last couple a bit shorter. Let’s talk about Kalshi, the prediction market — Anastasia.
Anastasia Boden: Oh, this is a fun one, since we’re talking about what the Court might grant and might not. This is another pending petition, not yet accepted, though I think there’s a good chance it will be. New Jersey has asked the Supreme Court to take up the fight over prediction markets — companies like Kalshi and Polymarket, which let people bet on the future: sports, elections, earthquakes, weather, box office numbers, how many times the president will say “Sleepy Joe” this week, how many hot dogs Joey Chestnut will eat, whether Costco will raise the price of its hot dog combo — a lot of hot dog bets, apparently. Unlike a casino, where you bet against the house, here you’re buying futures against an event; the price isn’t set by a “house,” it’s set dynamically by the market, and you can sell your position before the event happens to another buyer — you’re trading with other takers, not betting against the company hosting the trades.
Naturally, people want to regulate this, so states and the federal government are fighting over who gets to. States, across party lines, want to regulate prediction markets the same way they regulate sports betting — they say it’s the same thing. But these companies, backed by President Trump, say they’re federally regulated financial exchanges under Dodd-Frank, reporting only to a federal agency, not the states — which matters because it’s the states trying to regulate and shut them down. It’s also worth noting casinos clearly don’t want this competition, so they’re pushing states to regulate and help shut it down. There’s a circuit split: the Third Circuit said federal law — Dodd-Frank — preempts state regulation; the Ninth Circuit ruled the other way, that states, in that case Nevada, can regulate. That creates havoc for these markets, since depending which circuit you’re in, you report to the state or just the federal government. I think it’s quite likely the Court takes this up.
Best argument, one sentence each side: for Kalshi, Congress gave the CFTC authority to regulate “swaps” — a specific term, financial trades contingent on future events, very different from casino gambling, because you’re trading with other people, not against a house with fixed odds, and you can exit before the event happens. For New Jersey: come on, Congress enacted Dodd-Frank to regulate Wall Street derivatives — this is gambling, let us regulate it as gambling.
Matthew Cavedon: Darpana, if you’d give us a quick look at the Corporate Transparency Act, and then Anastasia for one more quick summary, and then we’ll open the floor.
Darpana Sheth: This is one of CIR’s petitions — there are two separate challenges to the Corporate Transparency Act, and CIR represents Texas Top Cop Shop. For those who don’t know: the Act requires roughly thirty-two million entities — LLCs, small corporations, even nonprofits and civic organizations — to report their beneficial owners to a law enforcement bureau at the Treasury Department, including names, birth dates, home addresses, and identification numbers, all going into a federal law enforcement database. Failure to report carries civil penalties and even criminal exposure. And the trigger isn’t selling anything, shipping anything, or crossing state lines — it’s simply filing formation papers with a state. The statute exempts large operating companies and regulated industries, so the burden falls on the smallest entities — the two-person LLC, the neighborhood association.
The issue is whether this exceeds Congress’s Commerce Clause power. Congress can regulate the channels of interstate commerce, its instrumentalities, and activities that substantially affect it. Even Raich, the broadest of these cases, was about the activity of growing and consuming a commodity. But the Corporate Transparency Act doesn’t regulate any activity — it regulates the mere existence of a company. Incorporate, and you owe the report, whether or not you ever open a bank account or make a sale. The government’s answer is that entities are inherently economic, anonymous shell companies are a favored vehicle for laundering money across borders, and requiring disclosure of ownership is ordinary economic regulation. And here’s the part that fits the term’s theme: the Treasury Department has retreated. In March 2025 it issued an interim rule exempting domestic companies and U.S. persons, and last month made that rule permanent — so the government is now telling the Court there’s nothing left to review. But the statute is still on the books, foreign companies registered here still have to report, repeal bills in Congress have failed, and what an agency exempts by rule, it can un-exempt by rule — the classic voluntary-cessation problem: a party can’t moot a case just by promising, for now, not to do the challenged thing. So we have a statute that reaches thirty-two million entities that may never actually be tested — not because it’s constitutional, but because the executive has decided, for now, not to enforce most of it.
Matthew Cavedon: And last but not least, Mi Familia Vota.
Anastasia Boden: Yeah — first, a postscript on prediction markets: you can actually bet on Polymarket on whether the Supreme Court takes the Kalshi case — Kalshi itself won’t let you bet on its own case, so go to Polymarket for that one. Also, I don’t want to be unfair to the government and chalk this all up to states responding to casinos wanting to shut these things down — there are real concerns about these markets. There’s been some self-dealing: George Santos, for instance, bet on whether he himself would attend the State of the Union. There was reportedly a high military official, with knowledge of future national-security events, betting on whether the U.S. would invade Venezuela. And a Trump teleprompter operator bet on how many times a word would appear in an upcoming speech. So there are real self-dealing concerns, which is part of where the push for regulation comes from — though the companies are trying to get ahead of it; they did ban George Santos for life. It’s really a question of who’s in the best position to regulate, and how much.
Anyway — Republican National Committee v. Mi Familia Vota. After last term — birthright citizenship, Humphrey’s Executor, conversion therapy, transgender athletes, voting rights, digital surveillance, tariffs — some people think this is a “sleeper” term, since it’s hard to compete with that. But it actually has plenty of consequential cultural cases too, and this one, about voting rights, is probably going to get a lot of attention.
The facts: Arizona, like all states, only allows U.S. citizens to vote in federal elections. States set eligibility for federal elections, but Congress has power to regulate the manner of federal elections, and under that power created a federal voter registration form requiring only an attestation of citizenship — no additional proof. The Supreme Court has previously held the National Voter Registration Act requires Arizona and other states to accept that federal form, with no additional corroboration required. Arizona, however, does require proof of citizenship for state elections. So what happens if someone submits the federal form without proof of citizenship? Arizona calls that person a “federal-only voter” — accepted for federal elections, as it must, but not for state elections. Arizona also has its own state form requiring proof of citizenship, which, if used properly, registers you for both state and federal elections — but if someone uses that state form without attaching proof of citizenship, Arizona rejects the application outright, rather than treating them as a federal-only voter. Arizona’s argument is that the Supreme Court only addressed the federal form — it didn’t dictate what happens with the state form, and Congress’s power extends only to the manner of federal elections. So this is Arizona’s way of trying to work around the earlier decision forcing it to accept voters without additional citizenship proof, at least when they use the state form.
A group of challengers sued, arguing Arizona is just trying to skirt federal law, and also challenged a separate Arizona process removing confirmed noncitizens from the rolls during the 90-day “quiet period” before an election — the National Voter Registration Act requires states to complete any systematic program to remove ineligible voters at least 90 days before a federal election, to prevent chaos and give time to fix errors. The Ninth Circuit held Arizona can still remove someone based on an individualized investigation — if it confirms someone is a noncitizen, it can remove them — but can’t run a systematic purge that close to an election. So it’s an interesting case touching voter ID, state authority, federal authority, and separation of powers.
Audience Q&A
Matthew Cavedon: We have about seven minutes for questions — we’ll open them up online and in person. Online, submit questions via the event webpage, Facebook, YouTube, or X, using #CatoSCOTUS. In person, please speak clearly and directly into the microphone, announce your name and affiliation, and end all questions with a question mark. Sir, on my right.
Audience member (Peter Humphrey): Peter Humphrey, an intelligence analyst and former U.S. diplomat. Ms. Boden — I’m wondering if I can bet on Kalshi on whether Kalshi gets picked up by the Supreme Court, and whether they win. But what I really want to ask: isn’t it possible to benefit from expanding a jury to, say, eighteen members, statistically taking advantage of all that research you described, but only require fifteen to find guilt — getting past the objection too? Seems like a no-brainer to me. Your comment?
Anastasia Boden: On the first one — actually, it’s Polymarket that lets you bet on Kalshi’s case; Kalshi itself has said you can’t bet on its own case. On the jury question: the Sixth Amendment only sets a floor — twelve is the minimum, and unanimity is required in certain cases — but if states want to go beyond that, I think they can. Surely there’s a point where the benefits run out — where it gets to be too many jurors, too expensive — but right now I don’t see that being a huge problem. If anything, the problem we’re seeing is these six-person juries, which have been well documented as problematic.
Audience member (Peter Humphrey): And what about a unanimous jury?
Anastasia Boden: Well, in cases where it has to be unanimous, you can’t just add jurors and say now you only need twelve of fifteen, or something — that would defeat the point. And there are only five states with a less-than-twelve requirement in the first place.
Matthew Cavedon: All right, next question — gentleman with the golden tie at the end of the row, you’re the next contestant.
Audience member (Pat Spann): That’s my West Point tie. Pat Spann, retired government employee. I’m wondering — it’s been pending for a few years now, ever since 2015 when women were allowed into the infantry and armor — is the case about women registering for the draft coming up?
Anastasia Boden: I’m not sure — not that I know of. There’s such a long list of interesting pending cases, if I could just give you one word for each — there’s a “Let’s Go Brandon” case, where a kid wore a sweater his mother gave him with that on it and was punished for it. There’s an armband case pending too. There are cases about the speech rights of people here legally but who aren’t citizens.
Darpana Sheth: We’ll find out a lot of that soon, because so many of those are pending for the long conference on the 28th — so October 5th is when we’ll know a lot more. There’s a DOGE case. There’s Trump v. Carroll. There’s going to be Lisa Cook follow-ups. There’s a Ten Commandments case, on whether it’s constitutional to display them in schools. There’s the White House ballroom case. There’s a lot pending — and when I was doing my research, I didn’t come across a draft-registration case at the moment.
Anastasia Boden: I haven’t seen a petition on that one either — not to say there isn’t one out there, but I haven’t seen it.
Matthew Cavedon: Front row — Richard Coleman, retired government employee.
Audience member (Richard Coleman): What’s the presumption of guilt that allows ICE to round people up and put them in a box, denying them normal human care? Where does that authority come from, and how does this persist in our country for so long?
Darpana Sheth: You’re exactly right — there is none, there’s no presumption of guilt, and there are a lot of challenges now against ICE, both over how it’s treating individuals and over how it’s trying to stifle transparency by treating people who record and broadcast that activity as though they’re committing a crime themselves — which, of course, is protected by the First Amendment, so I’m sure we’ll see cases percolate on that. I know my former employer, FIRE, has one, and there are others around the country brought by the ACLU. There are also cases being litigated right now in the lower courts challenging the use of ethnicity, appearance, and occupation as bases for immigration stops — those are Vasquez Perdomo and United Farm Workers, both originating in California district courts. There’s also a case about immigration arrests, rather than stops, based on the same factors — that one’s called Escobar Molina, and Cato will be filing an amicus brief in it. We also filed in United Farm Workers — you can learn more about both at cato.org.
Matthew Cavedon: All right, we’re coming up close on time, so I want to be mindful of that — we’re going to take a break, and then at 5:15 is the annual B. Kenneth Simon Lecture, by Tara Grove, Vinson and Elkins Chair in Law and Professor of Law at the University of Texas at Austin School of Law. So go ahead, do whatever you need to do to be ready for that, and we’ll begin shortly. Thank you all very much.
