With U.S. Supreme Court oral argument in Christie v NCAA in the books as of Monday, we’re taking stock of reactions and predictions on the high court’s ruling and the fate of PASPA, the 1992 federal law effectively banning sports betting outside Nevada. (Recap of argument here and another recap in plainer English here.)
Also known as the the Supreme Court Sports Betting Case, oral argument represented the culmination of New Jersey’s nearly decade-long effort to bring sports betting inside its borders. The case will hinge on PASPA’s constitutionality (the Professional and Amateur Sports Protection Act), and how the nine Supreme Court Justices evaluate the balance of federal government lawmaking against states’ rights. (Transcript of oral argument here.)
As a mini preview of what follows, frankly I wanted to present a greater diversity of opinions but couldn’t force that issue. These predictions and observations come from attorneys, professors, regular Supreme Court watchers, and others who have reported on and followed this case for a long time, many of whom attended oral argument.
Here’s a Round-up of Predictions and Observations on Oral Argument in Christie v NCAA, the Federal Law Banning Sports Betting And What Lies Ahead
From Andrew Brandt, columnist at TheMMQB.com and The Athletic; host of “Business of Sports” podcast; and Director, Moorad Center, Villanova Law School (click link inside tweet for his column and go here for SportsHandle’s discussion with Brandt):
Predicting a 6-3 vote for New Jersey.. https://t.co/7x5eyxbny0
— Andrew Brandt (@AndrewBrandt) December 5, 2017
From longtime, Las Vegas-based ESPN gaming writer/reporter David Purdum:
Adjusted odds out of Supreme Court hearing in New Jersey sports betting oral arguments: New Jersey -200 / Sports leagues +180.
— David Payne Purdum (@DavidPurdum) December 4, 2017
From Clay Travis, columnist/owner of sports, sports media and college football website OutkicktheCoverage.com , and host of @outkick podcast. Also an attorney:
Just left Supreme Court argument on sports gambling. I will be very surprised if federal prohibition isn’t struck down. Justices Breyer and Kennedy both seemed opposed to PASPA. I think it will be 6-3, or greater, in favor of striking down PASPA.
— Clay Travis (@ClayTravis) December 4, 2017
From attorney and third-place finisher in the Westgate Las Vegas NFL SuperContest:
As an attorney w/ a gaming background that has read the Professional & Amateur Sports Protection Act (aka PASPA) & was forced to endure boring con law classes in law school, I would make it -200 that SCOTUS upholds PASPA & passes torch (with hints) to Congress to repeal
— Fade Material (@fade_material) December 5, 2017
From attorney Amy Howe, Supreme Court reporter/watcher, publisher of “Howe on the Court” and former Supreme Court litigation instructor at Stanford Law School:
Perhaps most crucially for New Jersey, Justice Stephen Breyer pressed Clement to explain Congress’ goal in enacting PASPA. When Clement responded that Congress wanted to eliminate “state-sponsored or -operated gambling taking place by either individuals or the state,” Breyer pounced. That means, he observed, “there is no interstate policy other than the interstate policy of telling the states what to do.” … The argument continued for a few minutes more, but that exchange may have been enough for at least five justices. A decision in the case is expected by summer.
From Daniel Wallach, gaming and sports attorney and co-host of @ConductPod:
5 conservative justices + Breyer = sports betting for New Jersey (and other states). That’s the early read from today’s oral argument at #SCOTUS.
— Daniel Wallach (@WALLACHLEGAL) December 4, 2017
From an ESPN report by Dr. Ryan Rodenberg, member of the Supreme Court bar, sports law and sports analytics expert who filed an amicus brief in the case in support of neither party. The quote comes from Dr. Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of EmpiricalSCOTUS.com, in response to Rodenberg’s question, “What clues did you find that may indicate how certain justices may rule?”
Feldman: There are certain hints that suggest New Jersey may win the case, potentially paving the way for legalized sports gambling. The justices side with the petitioning party — New Jersey, in this case — in around 60 percent of cases, so the petitioner tends to have an advantage at the outset. The justices also tend to vote against the side they interact with more. Here, while Justices Sotomayor and Kagan were more engaged with Olson, Chief Justice Roberts and Justices Breyer, Kennedy, Gorsuch and Samuel Alito were more active in the discussion with Clement. Although Justice Thomas hardly ever speaks during oral arguments, he tends to vote with the Court’s right wing, which includes Justices Alito, Roberts and Gorsuch, and so if they all vote against the sports leagues we can expect Justice Thomas to as well.
From Ilya Somin, Professor of Law at George Mason University, in a column titled “Place your bets on federalism — thoughts on today’s oral argument in Christie v. NCAA”
In addition to Kennedy and Breyer, Chief Justice John Roberts and Justices Neil Gorsuch and Samuel Alito also seemed generally sympathetic to New Jersey’s position. Justice Clarence Thomas kept silent, as he does at nearly all oral arguments. But he is known for his support of very strong enforcement of constitutional limits on federal power, and it would be very surprising if he deviated from that position in this case. Overall, it seems as if New Jersey has the backing of a majority of justices, perhaps even a 6-3 or 7-2 majority (with Breyer and Kagan voting against PASPA in the latter scenario, along with the five conservative justices).
Finally, from Supreme Court bar member, Christopher Soriano, gaming attorney at Duane Morris LLP focusing on iGaming, DFS and sports betting:
#Sportsbetting argument is over. Wow. First reaction is NJ has a pretty good shot.
— Christopher Soriano (@CLSoriano) December 4, 2017
As expected the argument was fast paced and explored many areas. But there was quite the sense particularly among the court’s conservatives that something about PASPA’s way of regulating just isn’t right. Hard to say it doesn’t commandeer the states.
— Christopher Soriano (@CLSoriano) December 4, 2017
Like I said at the top, I had hoped to present a great diversity of assessments, i.e., some predictions for a favorable ruling for the sports leagues. But I couldn’t find credible accounts worth publishing to that effect. If you wish to offer an assessment, based on oral argument, contrary to the consensus opinion, please reach out to me at [email protected] or at personal email available at @brettsmiley.
Also check out from SportsHandle:
Cousin Sal Talks Sports Betting on ‘The Hedge: Why I Gamble with Jimmy Shapiro’
Supreme Court Litigator Explains Oral Arguments (Glen D. Nager)