On June 27th, The Supreme Court of the United States made headlines by granting the petition for certiorari for the controversial New Jersey sports betting case. The nearly five-year battle has finally yielded a potential win for New Jersey. Below, we review key dates for the state, as well as potential arguments that they could make before SCOTUS.
The Supreme Court of the United States has a set way of doing things. 45 days after cert is granted to a petition, merits briefs need to be submitted to the court. So that puts New Jersey on the clock with a deadline of August 10th. As an official case to be heard and not just a petition, Amicus Curiae briefs must also be resubmitted. Those are due before the Justices on August 17th.
The Leagues have been given until September 14th to respond to New Jersey’s merits brief. After that, New Jersey has one month to give their reply to the Leagues, so we can expect to see those documents presented to SCOTUS on October 14th. The case has been given the standard one-hour oral arguments time frame, with 30 minutes given to each side. SCOTUS generally schedules these arguments between October and April.
The Argument For Legal Sports Betting in the United States
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is an excerpt from the 10th Amendment of the Constitution of the United States and serves as the basis for New Jersey’s case against PASPA. Their argument touches on state sovereignty and anti-commandeering verbiage used in this part of the constitution. These arguments are brought forth by the actions taken by lower courts, in both the Christie I case and the Christie II case.
Christie I Overview: PASPA didn’t violate anti-commandeering laws because the state had a choice: repeal their own prohibitive laws or maintain them. In response, the state partially repealed the prohibitive measures to enable their casinos and racetracks to operate sportsbooks. That action led to Christie II.
Christie II Overview: The Third Circuit Court of Appeals reinterpreted PASPA in such a way that it does not only prevent the enactment of sports betting regulations, but it also prevents a state from repealing their own laws. Based on this interpretation, PASPA leaves the state with no options and no ability to govern itself (despite residents’ clear desire to have legal sports betting). New Jersey stipulates that this is a violation of the Tenth Amendment.
Judge Thomas Vanaskie, a member of the en banc panel that heard the Christie II case, stated in his dissent that PASPA went against the United States’ ideas on federalism by “dictating the manner in which states must enforce a federal law.” He said that PASPA was “effectively command[ing] the States to maintain and enforce existing gambling prohibitions.
PASPA’s proponents will argue that the federal government has the right to protect its citizens from vices and harmful activity. But when a federal ban is enacted without laying out a course of action with viable options for the states to choose from, it is a violation of the Constitution of the United States of America.
“The preemptive force of federal law does not authorize Congress to prohibit State action whenever and however it desires,” said West Virginia Solicitor General, Elbert Lin. “if Congress enacts a federal regime for which it takes clear responsibility, it may expressly preempt contrary State action to protect that regime. But if Congress simply prohibits State action in the absence of an existing federal scheme, it is unlawfully commandeering the states to enact federal policy.”
This federal ban not only keeps states from enacting the desires of its residents (commandeering their actions), it also violates the states’ sovereignty, as it prevents them from repealing their own laws as well. This takes away any choice that the state would have, making it a clear (in New Jersey’s opinion) violation of the Tenth Amendment.
The state will also argue that the federal government is showing preferential treatment to certain states over others. Their argument is that Nevada has a monopoly on gambling in the US, a multi-billion dollar industry. New Jersey will argue that the federal government showing preferential treatment to Nevada and other grandfathered states, violates Equal Protection, as it costs 46 states the ability to generate revenue in a similar manner.
The Plausibility Of An Outcome in New Jersey’s Favor
Even though the state has been turned down by every other court for sports betting in New Jersey, they actually have a pretty good shot at succeeding in the Supreme Court. Not only do they have a case that has piqued the interest of at least four justices (that is what is needed to have cert granted), it also has statistics on its side. In 2016, SCOTUS overturned 83% of lower court rulings. So really, New Jersey’ losing record is an advantage.
In addition to this, PASPA has been given the side eye by at least one sitting Justice (Ruth Bader Ginsburg), as well as by a former Justice (John Paul Stevens). PASPA’s selective enforcement in the US and the questionable viability of a federal gambling ban under the expanded reach of state sovereignty might not be able to stand up under actual arguments, rather than its wavering longevity under passing scrutiny.
Finally, SCOTUS has a slight conservative edge, with five of the nine justices affiliated with the Republican Party. This conservative ideology could be what New Jersey needs to strike down PASPA and restore states’ rights.
Working against them though is the fact that SCOTUS hasn’t overturned a federal ban under a Tenth Amendment violation since last century. In 55 years, there have only been two cases that have been successful on this front, in 1992 and in 1998.
That being said, the rulings in these two cases can work to New Jersey’s benefit. In 1992, Sandra Day O’Connor wrote for the majority and stated that “Congress cannot directly compel states to enforce federal regulations.” In 1998, it was Antonin Scalia who wrote the decision. “Forced participation of the state’s executive [powers] in the actual administration of a federal program…is unconstitutional.” PASPA does both.
In all, New Jersey does have a viable chance to win their case. It just needs to be argued expertly.