Those hoping the Supreme Court might tip its hand in the New Jersey sports betting case during Monday’s oral arguments will have to wait a few more months until a final ruling is delivered.
The justices heard New Jersey’s challenge to a federal law that bars states from authorizing gambling in most professional and college sports. If the Supreme Court strikes down the law, giving sports betting the go-ahead, 32 states would likely offer it within five years, according to a report by a California research firm.
The case pits New Jersey and other states against all four major U.S. professional sports leagues, the NCAA and the federal government. The stakes are high. The American Gaming Association estimates that Americans illegally wager about $150 billion on sports each year.
The NBA, NFL, NHL and Major League Baseball are arguing that striking down the law would hurt the integrity of their games, though leaders of all but the NFL have shown varying degrees of openness to legalized sports gambling.
More than a dozen states are supporting New Jersey, which argues that Congress exceeded its authority when it passed a 1992 law that keeps states from authorizing sports betting. The state says the Constitution allows Congress to make wagering on sports illegal but that it can’t require states to keep sports gambling prohibitions in place.
The Court’s nine justices exhibited both episodic agreement with and skepticism toward New Jersey’s argument that the federal government has unlawfully prevented the state from implementing sports betting through a backdoor means of repealing federal prohibitions on the activity.
In a head-twisting hearing littered with counterfactual example and logical complexities, several justices, most notably Chief Justice John Roberts and Stephen Breyer, asked questions that appeared sympathetic to New Jersey’s argument that the government’s actions constituted a violation of core federalist principles by indirectly forcing a state to regulate on behalf of the federal government.
At the heart of the justices’ questioning were questions of federalism, specifically the point at which the line between the federal government lawfully preempting state law and illegally engaging in commandeering should be drawn.
In hammering on these themes, the justices offered clear insight into why many observers were surprised that the Court agreed to hear the case in the first place, as they expressed minimal understanding of, or interest in, the intricacies of sports betting and casino gambling.
Ted Olson, a former U.S. solicitor general, kicked off arguments on behalf of New Jersey by driving home the point that the federal government had unconstitutionally engaged in commandeering by using the Professional and Amateur Sports Protection Act to force states to do the dirty work of regulating sports betting on its behalf.
Justice Elena Kagan pressed Olson, asking, if commandeering had indeed taken place in this instance, who specifically was being unlawfully conscripted to do something and how exactly that differed from other examples of the federal government enlisting the help of states to aid in the regulation process.
“The federal government is saying you can’t do something; that happens all the time,” she said.
Sotomayor said that she found no evidence in prior circuit rulings that New Jersey was being required to enforce the law in question, thus making the commandeering position tenuous.
“If every state enforced every law on the books the state would be bankrupt,” she said.
Other justices exhibited more skepticism, digging into the question of what amount of federal government regulation would be considered sufficiently comprehensive to be considered preemption rather than commandeering.
“You seem to be saying that they can’t regulate it if the regulation is a total ban. That is very comprehensive,” remarked Justice Anthony Kennedy.
But the justices were equally critical of the NCAA’s and the sports leagues’ position, which was argued by Paul Clement on behalf the leagues and Jeff Wall, U.S. Deputy Solicitor General, on behalf of the government.
They asserted that Congress’s intention with PASPA was to build on existing legal frameworks that made illegal gambling a criminal activity and that it, ironically, was an exertion of states’ rights principles because it gave states the freedom to regulate and penalize the behavior as they see fit.
Anthony Kennedy, who, along with Chief Justice Roberts, is typically a swing vote in cases that are decided along partisan lines, noted at the outset that the case “seems like commandeering.”
“The subject matter of the law falls into commandeering,” added Breyer.
Roberts expressed skepticism toward Clement’s interpretation of what Congress intended with the 1992 law, remarking that “if the goal was to ban sports betting, why not phrase it as such?”
Justices Samuel Alito and Neal Gorsuch, a noted federalist, reserved their toughest questioning for the leagues.
“This blurs accountability, this is precisely what federalism seeks to avoid,” Alito said of PASPA’s convoluted approach.
Wall argued that New Jersey’s entire case is built on legal sleight of hand and that the state’s approach is to leverage “two words” in a law to tear down the entire system for its own benefit.
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The Associated Press contributed to this story.
