The New Jersey sports betting push at the U.S. Supreme Court lives on to fight another day.
Rather than outright refusing or agreeing to hear the case New Jersey Thoroughbred Horsemen Association v. National Collegiate Athletic Association, the high court effectively punted Tuesday morning by inviting the U.S. government to respond to the arguments raised in the case.
“The Acting Solicitor General is invited to file a brief in these cases expressing the views of the United States,” the court said in an order issued on Tuesday addressing the petitions it considered in a conference it held last Friday.
While the move amounts to neither a win nor or a loss for New Jersey and sports betting advocates, it is a positive sign and an indication that the court has a keen interest in the constitutional principles involved in the case and that it wants to study out all perspectives of the issue.
New Jersey is seeking to circumvent a federal ban on sports betting imposed by the Professional and Amateur Sports Protection Act by repealing select state laws governing the activity. Its argument invokes questions of federalism and the relationship between individual states and the federal government, particularly in the context of an individual state’s ability to repeal a law that might put it in conflict with existing federal statutes.
The development was cheered by advocates of expanded sports betting.
“We are encouraged that the U.S. Supreme Court has expressed interest in the problems posed by PASPA, the failed law that fuels a $150 billion illegal sports betting market,” said Geoff Freeman, President of the American Gaming Association in a statement.
Out of the roughly 100 cases the court considered in its Friday conference, the New Jersey case was the only one in which the petition to grant a Writ of Certiorari – legalese that means the court simply agrees to hear the case – was not outright denied.
The Supreme Court receives petitions for thousands of cases each year but only agrees to hear a small handful, meaning that the odds of the court accepting any given case are almost microscopic. But the fact that the sports betting case was the only one of its cohort to not be immediately denied is seen as a significant development.
Jeff Ifrah, a gaming attorney and founding partner of Ifrah Law in Washington, DC, said that the Supreme Court’s interest in the case is intriguing given that the U.S. Federal Third Circuit Court of Appeals’ treatment of New Jersey’s argument during its en banc appeal last year was hardly flattering.
“Obviously the Supreme Court was not persuaded by the fact that the en banc slammed the merits of the case,” he said. “That should have been good enough for the court to deny the writ. You really have to scratch your head and wonder what are they so interested in?”
It is also noteworthy that the U.S. government didn’t file a reply brief in the case to begin with, particularly as New Jersey’s argument centers on the notion that PASPA, a federal law, is unconstitutional.
Daniel Wallach, a sports law attorney at Becker & Poliakoff in Fort Lauderdale, reckoned that the government may have held off this time because it effectively shot itself in the foot by weighing in the last time New Jersey raised the sports betting question to the Supreme Court.
“The last time the U.S. government weighed in, it may have harmed the case more than it helped,” he said, explaining that the Solicitor General previously asserted that “partial repeals” of state prohibitions on sports betting would not violate PASPA. Such comments would be difficult to walk back.
The duty of responding on behalf of the U.S. government will be tasked to a Solicitor General appointed by incoming president Donald Trump, who expressed support for legalized sports betting prior to becoming a political candidate.
“Now, Donald Trump has an immediate opportunity to impact the sports betting legalization debate with his Solicitor General choice,” Wallach tweeted Tuesday morning.
While no nominee has been officially announced, the legal blog Above the Law notes that the two finalists at the moment appear to be George Conway, a corporate attorney and husband to Trump advisor Kellyanne Conway, and Chuck Cooper, a close ally of Attorney General nominee Jeff Sessions.
“Whether that’s Conway or Cooper, they are both going to be doing the bidding of the president,” said Ifrah.
Ifrah added that New Jersey Governor Chris Christie’s proximity to and support for Trump could play a role in influencing the incoming administration’s position on the issue of sports betting.
“Christie could potentially go out on a high if he’s able to pull this off and bring in new revenues for some ailing industries in New Jersey,” he said. “This would be potentially a huge win and it’s got Christie’s name all over it. I’m sure Trump could deliver this for Christie if he wanted to.”
