Handicapping the Supreme Court Votes on Sports Betting Case
The Supreme Court has decided to hear New Jersey's cases for legalized sports betting. Here's how we think the Justices will wind up ruling.
© Jasper Colt-USA TODAY NETWORK
Forget actually playing ball—America's favorite pastime is betting on it.
Each year, Americans wager at least $150 billion in illegal sports gambling, according to the American Gaming Association, which is more than the annual revenue of 491 of the Fortune 500 companies. Thanks to a recent decision by the nation's highest court, however, federal law might soon reflect the reality that parlay cards are as much a part of the American fabric as grilling hot dogs on the Fourth of July.
After six years of litigation and three lower-court losses, the U.S. Supreme Court agreed last week to hear New Jersey's quest to legalize sports betting by granting certiorari in two cases now consolidated as one: Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association v. NCAA .
This is an astonishing feat for New Jersey given that the Supreme Court only hears about 1 percent of all cases appealed to it each year and the acting Solicitor General told the Court not to accept the case.
By ignoring the Solicitor General's advice and taking a case that last resulted in a 10-2 loss for New Jersey at the Third Circuit Court of Appeals, the Supreme Court has seemingly signaled that it intends to undo the federal prohibition on sports betting by declaring the Professional and Amateur Sports Protection Act ("PASPA") unconstitutional. Doing so would not instantly make sports betting legal, but it would pave the way for each state to determine if it wanted to join Nevada and offer fully legal sports betting.
The Supreme Court only agrees to hear a case if at least four of the nine Justices vote to do so. Winning, however, would require persuading at least five justices that PASPA violates the Tenth Amendment by impermissibly commandeering states' regulatory powers and infringes on states' "equal sovereignty."
Given the stakes involved and the weighty constitutional issues presented by this case, correctly predicting how the Court might rule is about as likely as nailing a ten-team parlay. Like a true gambler, however, there is no harm in trying to handicap the field. Here are the odds that each Justice votes to strike down PASPA and allow New Jersey to legally offer sports betting.
Chief Justice John Roberts: -150
Justice Roberts is the most crucial vote for New Jersey to win, because he is the Justice most likely on the fence about this issue.
At first blush, Justice Roberts should be a heavy favorite to vote in favor of New Jersey. He is the modern judicial leader of the "equal sovereignty" push. In the pivotal voting rights' case Shelby County v. Holder (2013), Roberts wrote the majority opinion (joined by Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy) that found Section 4 of the Voting Rights Act unconstitutional for violating the equal sovereignty of the states. Roberts wrote, while citing an older case, that "a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."
Like the Voting Rights Act, PASPA carves out different, or disparate, treatment of some states. The Voting Rights Act required nine states to obtain preclearance from the federal government of voting law changes while all others had the freedom to govern as they pleased. With PASPA, Nevada, Delaware, and a few other states had the freedom to legalize sports betting, while all others are beholden to the federal government.
However, Justice Roberts is also a fan of letting change occur through the legislative process rather than an "activist" court. Remember, he wrote the opinion upholding individual mandates to keep the Affordable Care Act alive in NFIB v. Sebelius (2012). His rationale was that it is not the Court's role to "pass upon its wisdom or fairness" so long as Congress duly passed the law and it had the power to do so.
Nobody can question that Congress purposefully sought to outlaw sports betting. So there is a sleeper chance that Roberts lets PASPA stand and writes an opinion calling for legislative, not judicial change. Ultimately, though, as a member of the Court's conservative wing and a champion of states' rights, he is likely a vote for New Jersey.
Neil Gorsuch: -300
The Supreme Court's newest member has a chance to cement his legacy in his first term with cases involving Trump's travel ban, the baker who won't make cakes for gay couples, and now sports betting.
Much like for Roberts, this case presents a prime opportunity for Gorsuch to fill Scalia's right-wing shoes and champion states' rights. Although Gorsuch is a strict textualist who would seemingly defer to Congress, all signs suggest that he is not going to stand for a law that is only selectively enforced—DFS still exists—and infringes on states' ability to make their own gambling laws. Additionally, PASPA is the only federal law that grants private corporations the same power as the U.S. Attorney General to enforce the sports betting ban. How that passes constitutional muster is beyond comprehension, and Gorsuch appears poised to slap the law down.
However, Gorsuch is also deeply in touch with the socially conservative argument that the ills of gambling will bring the devil into every town in America if PASPA is off the books. While Gorsuch siding with New Jersey is not an absolute lock, smart money would make him the second vote for killing PASPA.
Samuel Alito, Clarence Thomas: -600
Alito and Thomas are a conservative package, and it is extremely unlikely that they would come down differently on this case based on ideology.
We also know that Thomas simply follows the conservative leaders of the court. With Gorsuch now the new Scalia, he will almost certainly do whatever Gorsuch does. Alito exhibits a bit more free will, but there is zero chance he would oppose something that both Roberts and Gorsuch support.
The opportunity to slam the ever-expansive federal government and protect states' sovereignty is not one the Justices furthest to the right will miss. Take Alito and Thomas to the book all day as siding with New Jersey.
Anthony Kennedy: +150
Kennedy is a tough vote to predict. He is often considered the true swing vote breaking the 4-4 left vs. right tie on the Court. He has also exhibited keen awareness of popular social issues like when he broke the tie to tilt the Court 5-4 in favor of allowing same sex marriage in Obergefell v. Hodges (2015).
With that awareness, Kennedy no doubt has taken notice of the nation warming up to the concept of legalized sports betting. He is also the Justice who will likely press the leagues the most on their hypocrisy of investing in daily fantasy sports and placing teams in Vegas while also claiming sports betting is evil.
If there is a 4-4 tie, odds are that Kennedy will break it.
Ruth Bader Ginsburg: +250
While it's unlikely, the Notorious RBG might be New Jersey's best hope of pulling a liberal justice to the majority side in part given her prior skepticism of PASPA and equal sovereignty.
In her dissenting opinion in Shelby County, Ginsburg actually referenced PASPA and asked if a statute like it would "remain safe given the Court's expansion of equal sovereignty's sway."
This is a key passage. Does Ginsburg now reluctantly vote to strike down PASPA due to precedent created by Shelby County or does she stick to her guns and say federal laws that treat states differently are not novelties and Congress has every right to implement them?
Voting with the conservative block might be a hard pill to swallow, but if Ginsburg follows her own logic and Supreme Court precedent, she has a defensible route to side with New Jersey.
Stephen Breyer, Sonia Sotomayor, Elana Kagan: +500
The liberal trio of Breyer, Sotomayor, and Kagan appear as if they will vote as a package on this case. Although there are no strong ideological reasons for expanding or limiting sports betting from their camp, striking down PASPA could have significant ramifications for future liberal policies.
At its core, this case presents the Court with a question about the scope of federal power to dictate what individual states can and can't do. A seemingly simple decision on sports betting could redefine how the Court views the 10th Amendment, with potential consequences for many future issues including marijuana legalization, gun laws, and expanded civil rights.
A vote against New Jersey from these Justices is not necessarily a vote against sports betting. Rather, it is a way for the liberal justices to maintain a path to impose federal legislation on states that want the freedom to decide those other issues on their own.
Odds are New Jersey loses these three votes.
Prediction: New Jersey wins 6-3.
Although the justices are not always placed in such neat boxes of ideology, it certainly seems highly unlikely that the Supreme Court took this case just to let PASPA stand. Going against the Solicitor General and hearing a case where there are no circuit splits signals that legal sports betting is just around the corner.