Oral Argument Preview for New Jersey’s Supreme Court Sports Betting CaseBy Brett Smiley | Published: December 3, 2017 at 10:30 am
With oral arguments in Christie v NCAA (aka the Supreme Court Sports Betting Case) now just 24 hours away, let’s take stock of everything we now know, and what we may reasonably expect in the Supreme Court on Monday when New Jersey takes on the NCAA and major pro sports leagues (“Leagues”) over legal sports betting.
That task means synthesizing everything (briefly): The facts of the case(s) and its eight-year history; all the briefs including the various amicus briefs; the underlying 1992 federal law at issue that effectively ban sports betting outside Nevada, the Professional and Amateur Sports Betting Act (“PASPA”). We also consider the various expert analyses that we’ve published, relevant Supreme Court precedents, the bench’s composition, public opinion, the Leagues’ actions and public showing of support for legalized sports betting, and Justices’ possible consideration of such, and more.
New Jersey’s Supreme Court Sports Betting Case: Oral Argument Preview, Main Points, What to Watch For, And a Prediction About the Outcome
Thinking long and hard and often about it, I think the court is going to ultimately issue a favorable decision for New Jersey… and I think it’s just a matter of how they get there.
First things first, remember the before the high court accepted the case, it asked for a CVSG, or “Called for the View of the Solicitor General.” And the the SG’s office suggested that the court not take up the case. Most often the court listens to the SG’s recommendation, but here it did not.
That’s a big signal that the Justices believe that PASPA — the way it operates and its wider implication for the interplay between federal and states’ rights — has much wider importance. Indeed, 20 others states signed an amicus brief supporting New Jersey on the basis that PASPA tramples on states rights. That’s of grave concern to the other states, including Utah, which doesn’t have a lottery and doesn’t give a damn about sports betting.
Thus, this case really isn’t about sports betting. It’s about states rights and federalism.
So now we turn to what the veteran litigators — Rudy Telscher and Glen D. Nager — recently told SportsHandle about arguing a case before the Supreme Court. Both of them emphasized that a good attorney and orator has “lived” the case, know the most salient points inside and out, and will be prepared for almost any question from anywhere on the bench. Telscher and Nager also agreed that an attorney should focus on making three central points, and tactfully return to them while making sure to soundly respond to what the Justices ask.
The Overarching Points That New Jersey Will Cover
In light of that, what are the three most salient points on each side? Based on the briefs and all the factors mentioned above, I expect co-petitioners, New Jersey (Christie) and the New Jersey Thoroughbred Horsemen’s Association (NJTHA) to focus on the following, via attorneys Ted Olson (New Jersey) and Ron Riccio (NJTHA), however they divide their time:
1. The Anti-commandeering Doctrine: This doctrine has been the emphasis and centerpiece of New Jersey and the NJTHA’s briefs. Basically, they argue that PASPA forces states and their legislatures to maintain and enforce laws prohibiting sports wagering. Olson writes in New Jersey’s reply brief:
The state-law prohibitions that New Jersey’s Legislature has chosen to repeal must “now remain in force.” That should be the end of the case, because the Commerce Clause does not “confer upon Congress the ability to require the States to govern according to Congress’ instructions.” But that is precisely what PASPA does. It dictates the contents of New Jersey’s laws by conscripting New Jersey’s Executive—as if he were a “puppet of a ventriloquist Congress,” to keep “in force” statutory prohibitions on sports wagering that the State’s Legislature has repealed.
2. The Equal Sovereignty doctrine: Also known as “equal footing.” NJTHA’s opening brief hits on this doctrine hard, stating that PASPA puts states other than Nevada, Delaware, Montana and Oregon (the latter three of which have some sports betting grandfathered in via PAPSA) at a “competitive disadvantage.” This speaks to the equal sovereignty doctrine, according to which states should be on equal footing.
3. The Non-delegation doctrine. The argument here is that the sports leagues are permitted by PASPA to obtain injunctions in court blocking states from enacting sports betting. They have the same power in that regard as the U.S Attorney general. And by the way, no attorney general in 25 years has gone to court to enforce PASPA. Effectively, the point goes, the federal government has outsourced enforcement of the law to private parties. The NJTHA quotes from a previous case: “In this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ – it is a gun to the head.”
I believe those will be Olson and Riccio’s three central points: PASPA is blatant trampling upon states’ rights, which puts almost every state on grossly unequal footing, and puts a gun in the hands of private party leagues.
Main Points From The Leagues and the Solicitor General
For the sake of brevity, these will almost assuredly be the major three points of Paul Clement and the Solicitor General (who’s backing PASPA and the respondent leagues in this case): (1) PASPA is a perfectly regular expression of the Supremacy Clause of the U.S. Constitution, such that federal law is the law of the land. (2) The law requires states to do nothing to comply with the federal law. Do nothing. (3) Even if the high court finds the main clause of PASPA is unworkable, it should be severed from the second clause (§3702(2)), which can still give effect to Congress’ intent in passing the law — to regulate sports betting and make it illegal for private parties, they argue, to engage in sports betting operations.
So, Where Does That Leave Us?
We know that at least four justices wanted to examine this case and PASPA. Not because they want to see expanded (or contracted) sports betting in the United States, but because of their role in determining the operation of the U.S. Constitution.
Although the anti-commandeering doctrine garnered much of the ink in New Jersey’s and the Leagues’ briefs, I think, especially after a conversation with another legal scholar, that this case is not the best vehicle to expand or narrow the anti-commandeering doctrine. PASPA is kind of muddled, as is this case’s history. But PASPA’s federalism problem remains.
So to answer the question posed earlier: How do the Justices get there — to a favorable ruling for New Jersey? The equal sovereignty doctrine, such that states should not be subject to differential treatment by the federal government unless a law meets certain levels of scrutiny. Chief Justice Roberts announced his support for the equal sovereignty doctrine in a voting rights case in 2013 (Shelby County v Holder).
The newest Justice, Neil Gorsuch, is considered a constitutional textualist (adhering to the letter of the sacred document); Justices Clarence Thomas and Justice Alito are reliably conservative, and liberal Justice Ruth Bader Ginsburg has previously cast doubt on PASPA, wondering in her dissent in Shelby County if PASPA would “remain safe given the Court’s expansion of equal sovereignty’s sway.”
Said gaming law expert I. Nelson Rose of PASPA:
“It’s irrational. It discriminates. Why should New Jersey not be allowed to have sports betting while Nevada has it? It also is the only federal statute that I know of that tells the states they can’t change their policy on gambling … The Court of Appeals [the lower court] made such an outrageous decision — they interpreted this statute as saying a state cannot change its laws.”
That speaks to both anti-commandeering and equal sovereignty. It seems the court has multiple pathways to striking down PASPA. Still, the the Solicitor General is indeed backing the existing federal law and the Leagues.
Now back to Glen D. Nager’s assessment of oral argument: “I would say that the opportunity to influence the decision-making process in the Supreme Court is 99% in the briefs and 1% in the oral argument.”
So, these studious, sharp Justices may have already made up their minds. And oral argument may just give us clues how they’re getting to their decision, rather than their mechanism for formulating their positions. We’ll soon have more clues, and finally a decision in the Spring.