An artist rendering during oral argument, showing Ted Olson speaking (at right)

Oral Argument, One Year Later: 60 Minutes That Changed Sports Betting Forever

One year ago on this day, four hours before the sun rose, I stood on a sidewalk adjacent to the United States Supreme Court, waiting for one of 50 public tickets to hear 60 minutes of oral argument that would help decide the fate of sports betting in the U.S.

Nobody knew exactly what to expect, especially the veteran attorneys on opposing sides of Murphy v NCAA, who knew to expect anything.  Before a packed house of anxious and excited observers, counsel for the the State of New Jersey and the New Jersey Thoroughbred Horsemen’s Association (collectively ‘Murphy’), Theodore B. Olson began on Chief Justice John Roberts’ cue:

One of the most important decisions made at the Constitutional Convention in 1787 was replacing the failed confederacy that governed states with a national government that could regulate individuals but not states. In the words of this Court in the New York case, Congress may regulate interstate commerce directly, but it may not regulate states’ regulation of interstate commerce.

That’s as far as Olson got before Justice Ruth Bader Ginsburg interjected, starting the back-and-forth between Olson and the rest of the fine nine judicial minds stationed at the front of the room, in which cameras are strictly prohibited.

The great irony of the “Supreme Court Sports Betting Case,” as we called it for short, is that sports betting mattered very little on Dec. 4, 2017.  Murphy v NCAA reached the Supreme Court because the law that had banned full-fledged sports wagering outside Nevada since 1992, the Professional and Amateur Sports Protection Act (PASPA), highlighted a crucial boundary between the power of states and the federal government. It took a lot of gumption, and years, and a motivated actor to even get the case to SCOTUS: the State of New Jersey.

In his deep, authoritative voice, Olson skillfully played pitch-and-catch with the justices for 25 minutes. Observers like myself hung on every word, attempting to find meaning and purpose in every question and answer.  In a worn, wooden seat crammed against the next guy in the last row, with no room to spread my elbows, I used my friend’s shoulder to my right as support for a pad to scribble notes.

“Congress could have prohibited sports gambling itself,” Justice Alito said to Olson. “So what federal policy is served by this statute that would not have been served by the former?”

I scribbled feverishly as much of that line as I could. Was Alito signaling something? Count him in the Jersey column?!

[Also See: On Anniversary of Pivotal U.S. Supreme Court Sports Betting Hearing, Key Players Reflect]

The attorney for the NCAA and the professional sports leagues, Paul D. Clement, a highly experienced Supreme Court tactician like Olson, hit his points, too. But he didn’t sound as calm as Olson, and the justices seemed to probe his arguments with more skepticism. 

The clock winded down and Deputy Solicitor General Jeffrey B. Wall settled in for his 10 minutes, defending PASPA on behalf of the federal government. Wall stepped into some mud when he suggested the government would have no problem with New Jersey totally repealing its laws against sports wagering, prompting this exchange between he and Justice Roberts:

Roberts: You have no problem if there’s no prohibition at all and anybody can engage in any kind of gambling they want, a 12-year-old can come into the casino and — you’re not serious about that.  

Wall: I — I’m very serious about it, Mr. Chief Justice.

At that moment I felt very strongly that New Jersey had won the case. Between Alito, Roberts, and comments made by other justices, and the fact that the court took the case in the first place where the statistical likelihood is always that the lower court decision gets reversed, it just added up. But as in gambling, there are no locks.

Five-and-a-half months later, when the high court issued its decision in favor of New Jersey on May 14, 2018, striking down PASPA on Tenth Amendment grounds, the outcome of the case changed everything for sports betting in the U.S.

The pace of industry and legislative dominoes falling since mid-May has been mind-boggling. In fact, the frenzy began much earlier, back in January, when several pro leagues began lobbying in numerous state governments for sports-betting legislation favorable to their (financial) interests.

But one year ago, everything remained uncertain.

Never mind, Will Kentucky legalize next? When will mobile betting apps go live in Pennsylvania?

Nobody knew for sure if full-fledged legal sports betting would touch down in New Jersey, or anywhere else in this great union. It could have been another five years before the federal government got around to it, or until other states pushed in their legal chips, or maybe never. There will (probably) always be the option to bet with offshore sportsbooks. 

Later on the day of oral argument, I rode the train back from Washington D.C. to New Jersey and texted my father and brother, “I think Jersey won.”

One year later, on the same mobile device, there’s six different apps connected to legal, regulated New Jersey sportsbooks.