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The Supreme Court Just Asked The Trump Administration To Weigh In On Legal Sports Betting In New Jersey

​New Jersey's long-shot bid to legalize sports betting has reached the Supreme Court, and could be hurt or helped by Trump's pick for Solicitor General.

Steve Silver

When you're feeling the holiday spirit, and also in position to throw New Jersey a big sports gambling bone. Photo by John Blackie-USA TODAY Sports

New Jersey's long-shot bid to legalize sports betting received a glimmer of hope today thanks to a major administrative ruling by the United States Supreme Court.

Following a routine conference where the Supreme Court justices determine which cases to hear, the Court issued an order inviting the "Acting Solicitor General" to file a brief "expressing the views of the United States" concerning the federal prohibition of sports betting.

This order, known by lawyers as a "CVSG," is significant because it means that the Supreme Court justices believe the case is important enough to Call for the Views of the Solicitor General. It also keeps the case alive for now, which is a rare feat considering the Supreme Court only hears about one percent of all cases appealed to it per year.

The dispute made its way to the Supreme Court via two cases now consolidated as one: Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association v. NCAA. At their core, the cases represent New Jersey's attempt to allow sports betting in its casinos and racetracks just like Nevada. New Jersey argues that the Professional and Amateur Sports Protection Act ("PASPA"), a federal law that bans sports betting outside of grandfathered states such as Nevada, unconstitutionally commandeers the state's regulatory power.

In 2011, about two-thirds of New Jersey voters approved a referendum to legalize sports betting. After the state tried to enact the will of its voters, the NCAA, NBA, NFL, NHL, and MLB sued the state for violating PASPA. Notably, the federal government never stepped in to block New Jersey's efforts. Why? Because the law granted private sports leagues the same legal powers as the United States Attorney General to enforce its ban on sports betting.

New Jersey took the case to the Third Circuit Court of Appeals in 2015, where it lost by a 2-1 vote with Donald Trump's sister, Maryanne Trump Barry, and Marjorie Rendell, the former wife of Pennsylvania's Democratic ex-governor, Ed Rendell, casting the deciding votes. New Jersey then appealed to the entire Third Circuit, losing 10-2 in August.

These two losses left New Jersey down to one play with no time on the clock—a Hail Mary to the Supreme Court with a Trump presidency about to begin.

The impending regime change makes today's invitation to the Solicitor General—in essence, the Court is asking what it should do—all the more interesting, because there is no deadline for the government to submit its brief. This means that the next Solicitor General, appointed by Trump, will have the opportunity to potentially determine whether PASPA survives.

Predicting how the next Solicitor General will view sports betting is about as difficult as nailing a perfect parlay card.

Trump is seemingly on board with legalized sports betting. When he was a New Jersey casino owner in the 1990s, New Jersey had a chance, just like Nevada, to legalize sports betting and become immune to PASPA's prohibition. In typical Jersey fashion, it couldn't get its act together. However, Trump was a huge supporter of sports betting, calling it "vital to keeping taxes low and putting the bookies out of business."

Legalized sports betting would certainly generate significant new revenue and create new jobs by tapping into the $150 billion per year market. Plus, undoing PASPA would keep in line with traditional conservative values of states' rights trumping federal control.

It also does not hurt that Trump's campaign buddy, New Jersey Governor Chris Christie, is the one seeking legal sports betting. Maybe Trump will throw Christie a bone on this one after snubbing him from his cabinet. (Editor's note: assuming Trump's Count of Monte Cristo-loving son-in-law, whose father was basically jailed by Christie, allows it).

That said, the next Solicitor General is still a mystery. Rumors have pegged Trump aide Kellyanne Conway's husband, George Conway, as a favorite for the role. Conway is a corporate lawyer and sports betting is a net positive for corporations. Except, of course for the anti-gambling NFL. Conway has represented the NFL in the past, and it's possible Roger Goodell could exert some influence on Conway if need be. There are also the far right conservatives who just hate all forms of gambling.

Fortunately, the Solicitor General's brief on the matter will likely not be filed until May, meaning the Supreme Court would hear arguments next term. By that time there could be a 9th justice, widespread legalization of Daily Fantasy Sports, and an NFL team in Las Vegas.

For now, bookies can breathe a sigh of relief, but change could be around the corner.