It’s time to win or go home for New Jersey’s latest attempt to challenge the federal ban on sports betting by repealing state laws that prohibit the activity.
The U.S. Supreme Court will hold a conference on Friday, January 13, to consider upwards of 100 cases to potentially add to its 2017 docket. Among the petitions it is slated to review is New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association, the case in which New Jersey is seeking to circumvent the Professional and Amateur Sports Protection Act by decriminalizing sports gambling within the state.
The appeal to the high court comes after New Jersey’s maneuver was struck down by the U.S. Third Circuit Court of Appeals in August, 2015 and again in August 2016 during an en banc rehearing.
Should the Supreme Court agree to hear the case, it would be a watershed moment and a momentum boost for proponents of expanded sports betting in New Jersey and around the country.
The court is expected to announce whether or not it will consider the case next Tuesday, January 17.
In making their pitch to the court, the proponents are arguing that their case is of national importance because it touches on themes of federalism and states’ rights that could potentially impact a multitude of other issues.
The plaintiffs argue in their petition that the Third Circuit’s decision “deprives the [New Jersey Thoroughbred Horsemen’s Association] and the people of New Jersey of the political and individual liberties that federalism is designed to protect.”
“This isn’t simply about the legality of sports betting,” said Daniel Wallach, a sports and gaming attorney with Becker & Polliakoff in Fort Lauderdale, Florida. “It turns more precisely on the issue of whether the federal government can prevent state lawmakers from repealing state laws.”
Should such a precedent be established, it could jeopardize efforts by states to take other actions that conflict with existing federal law, such as to repeal prohibitions on marijuana.
The chances of the court deciding to hear any given case are just slightly better than getting struck by lightning.
For the Supreme Court to agree to hear a case, four of its current eight – normally nine – justices must agree to grant what’s known as a Writ of Certiorari. The court receives in the neighborhood of 5000 such petitions per year, but usually agrees to hear less than 100 of these.
The circumstances surrounding the New Jersey case do not fit the profile of the types of cases the court usually takes on.
“The typical case that makes it all the way to the Supreme Court emerges because of a split among lower courts. We don’t have that here,” said Wallach.
The Supreme Court currently having only eight justices also hurts New Jersey’s chances of being granted Certiorari just based on the numbers. Four votes are required for the petition to be granted irrespective of the number of justices currently sitting.
“New Jersey has to bat .500, whereas with a ninth justice they would only have to bat .444,” said Wallach.
But Wallach emphasized that not all petitions are created equal and noted that the overarching theme of federalism in the New Jersey case could be enough to move the needle. He also highlights the fact that the attorneys representing both sides in the case – Paul Clement and Ted Olson, respectively – are both former Solicitor Generals and are known commodities to the justices on the court.
These factors, he said, advance the probability of the court hearing the case to between 10 and 20 percent.
If the court doesn’t agree to hear the case, it’s effectively the end of the line for an effort begun in 2014 by New Jersey Governor Chris Christie to take a backdoor approach to allowing sports betting in his state. Instead of legalizing it outright, he instead issued a directive saying that New Jersey casinos and racetracks could allow sports betting without fear of retribution.
While Christie claimed that this tactic was in-line with guidance issued by the Third Circuit in the state’s previous attempt to legalize sports betting, the partial repeal was deemed by the court to be too selective.
But a denial by the Supreme Court on Tuesday in no way would signal an end to New Jersey’s sports betting push. In November, legislation was introduced that would trigger the so-called “nuclear option” by completely repealing all of the state’s laws pertaining to sports betting, thereby commencing yet another adventure through the federal appellate courts.
