The Courts in the Crossfire
Prediction markets are pricing in something that legal scholars dare not say aloud: the federal judiciary's independence may already be lost.
There is a number that keeps appearing in conversations among constitutional lawyers who prefer to speak off the record. It surfaces in private Signal threads, in whispered exchanges at Federalist Society dinners, in the nervous asides of law clerks who graduated into an institution they no longer fully recognize. The number is not a poll or a vote count. It is a probability estimate, the kind generated not by a think tank or a partisan brief but by the cold arithmetic of money. On Kalshi, as of mid-February 2026, the contract asking whether the Supreme Court will issue a ruling this term that is openly defied by a federal executive official — not merely criticized, not rhetorically attacked, but functionally ignored — was trading at 34 percent.
Thirty-four percent.
To understand why that number should disturb anyone who has spent time studying American constitutionalism, consider what it implies. The Court's authority rests entirely on deference. Alexander Hamilton famously described the judiciary as the "least dangerous" branch because it possessed neither force nor will — only judgment. The moment that judgment is rendered optional, the judiciary ceases to function as a coequal branch and becomes something more like a prestigious advisory council, its rulings the institutional equivalent of a strongly worded letter.
The markets, blunt instruments that they are, may be the most honest reporters we have left.
The story of judicial independence in America has never been as clean as civics textbooks suggest. Andrew Jackson may or may not have said "John Marshall has made his decision; now let him enforce it" — historians dispute the attribution — but the sentiment was real enough. FDR's court-packing scheme in 1937 is remembered as a failure, but the so-called "switch in time that saved nine," in which Justice Owen Roberts began upholding New Deal legislation almost immediately after the threat was announced, suggests that the failure was merely tactical. The Court absorbed the pressure and changed its behavior.
What we are experiencing now is different in kind, not merely degree. The threats to judicial independence come simultaneously from multiple directions, and prediction markets have become one of the few places where the cumulative weight of those threats is being quantified in real time.
Metaculus, the forecasting platform that aggregates expert predictions, has a standing question tracking what it calls a "Judicial Independence Index" — a composite measure incorporating appellate court defiance rates, congressional signals about court-stripping legislation, and executive branch compliance with injunctions. As of February 10, 2026, the median forecast for the index shows a statistically significant decline through the end of 2027. The 90th percentile outcome — the scenario that forecasters assign only a 10 percent chance of being worse — involves what the question's designers euphemistically call "significant structural alteration" of the federal judiciary.
The language is careful. The implications are not.
To understand what the markets are actually pricing, you have to understand the three distinct threat vectors that constitutional scholars have identified, each of which is capturing a different corner of prediction market activity.
The first is direct defiance. This is the Jackson scenario — an executive branch that simply declines to comply with a court order it finds inconvenient. Kalshi currently has an active contract on whether President Trump will issue a public statement characterizing a federal court order as "illegitimate" before July 2026; that contract was sitting at 61 percent as of last week. A separate contract, more specific, asks whether the administration will miss a court-ordered deadline in an immigration case by more than thirty days without seeking an extension; it was trading at 44 percent.
The second threat vector is legislative — what legal scholars call "jurisdiction stripping," the constitutional mechanism by which Congress removes the Supreme Court's appellate jurisdiction over specific categories of cases. Article III, Section 2 explicitly grants Congress this power, and it has been used before: the 1868 McCardle case, in which Congress stripped the Court's jurisdiction over a Reconstruction-era habeas corpus case while it was pending, was upheld by the justices themselves. Polymarket has a contract on whether Congress will pass legislation removing federal court jurisdiction over at least one immigration enforcement category before January 2027; it was last trading at 28 percent, up from 14 percent in October.
The third vector is the subtlest and in some ways the most corrosive: informal pressure that changes judicial behavior without ever requiring a direct confrontation. This is the FDR mechanism — the threat that produces compliance without requiring the threatening party to ever follow through. There is no prediction market contract that cleanly captures this phenomenon, because it is, by definition, invisible. But Metaculus forecasters assign a 71 percent probability to the proposition that at least one federal appellate court will significantly modify or narrow an injunction blocking executive action within 30 days of a senior administration official publicly criticizing the court in question. Whether that correlation implies causation is, of course, precisely the question that no one wants to answer on the record.
The response from legal traditionalists to all of this has been to insist that the system is more resilient than the doomsayers suggest. The courts have faced political pressure before, this argument goes, and they have survived. The Rule of Law is not merely a collection of statutes and judicial opinions — it is a culture, a set of expectations and habits that has proved surprisingly durable across two and a half centuries.
This argument has real merit. The federal judiciary's track record of at least formal compliance from the executive branch is genuinely impressive by global standards. In a 2024 comparative study of 48 democracies published in the Journal of Democracy, American courts ranked in the top quartile for executive compliance with court orders, even accounting for recent years. The norms that protect judicial independence are not merely formal — they are embedded in legal education, bar association culture, the self-understanding of career civil servants, and the institutional incentives of the executive branch itself.
But the same study offered a finding that received less attention: the countries that experienced the fastest erosion of judicial independence were, almost without exception, countries where the erosion began with what the researchers called "compliance theater" — formal compliance with court orders accompanied by public delegitimization of the courts as institutions. The orders are obeyed; the institution is undermined. The short-term and long-term effects diverge completely.
This is precisely the pattern that prediction market traders appear to be pricing. The Kalshi contracts are not primarily betting on dramatic Jacksonian defiance — a president announcing that he will simply ignore a Supreme Court ruling. They are betting on something more ambiguous and more sustainable: a gradual normalization of treating the courts as one political actor among many, to be outflanked when possible and obeyed only when the political cost of defiance exceeds the political cost of compliance.
That is a much harder phenomenon to litigate. It is also, historically, much more dangerous.
The deepest problem, which neither prediction markets nor law review articles can fully capture, is that judicial independence is not a property that exists independently of the people who believe in it. It is a shared fiction — in the technical sense that philosophers use that word — that becomes real precisely because enough relevant actors treat it as real. Judges write opinions as though their reasoning matters. Presidents issue signing statements and legal memoranda rather than simply acting. Lawyers make careers out of litigating the boundaries.
The moment a critical mass of relevant actors stops treating the fiction as real, it ceases to be real. There is no tripwire, no threshold, no moment at which anyone can say: "Here is where it happened." The transition from a society governed by the Rule of Law to a society in which law is a resource available to some actors and a constraint on others is not a discrete event. It is a phase change — gradual, then sudden, then irreversible.
On Kalshi, you can buy a contract that expires worthless if the Supreme Court maintains its current institutional position through 2028. It was trading at 58 cents on the dollar last week. The people betting against it — the people who believe there is a 42 percent chance that something meaningful has changed — are not radicals or alarmists. They are traders, putting real money on their probabilistic assessments of observable reality.
Whether the 58 cents represents hope or denial is a question that the markets, for all their wisdom, cannot answer.
Marcus Webb is a staff writer at The Auguro covering American political institutions and constitutional law. He previously covered the Supreme Court for the National Law Journal.