The New Jersey sports betting case got a shot in the arm on Tuesday, when the US Supreme Court neither approved nor denied a appeal in the case.
Instead of either of those things, the court asked for a brief from the US Solicitor General in New Jersey’s ongoing case to legalize sports betting.
That has created a new window for the NJ sports betting case that many thought had a long shot of happening: The possibility of SCOTUS actually hearing the case.
It’s clear that the request from the court has increased the probability that it will be heard eventually. But how much has it increased?
SCOTUS clearly doesn’t believe the case is without merit
The Supreme Court denies far more appeals than it hears; in most years, far fewer than five percent of appeals are granted.
It could have simply denied NJ case, like it does so many others, and no one would have batted an eyelash. The fact that it did not do immediately deny the appeal is at least somewhat telling. SCOTUSblog, which follows all things having to do with the highest court in the US, called the request “significant.”
The fact that SCOTUS asked for the solicitor general to appears to have helped the cases odds in a material way, however.
Involving the Solicitor General helps a case’s odds
A paper published in 2009 quantified the impact of a “call for the views of the Solicitor General” (CVSG).
The paper is entitled “An empirical analysis of Supreme Court Certiorari Petition Procedures: The call for response and the call for the views of the Solicitor General.”
The takeaway from that analysis: A CVSG is really good for an appeal being granted. Roughly a third of all appeals involving a CVSG are eventually heard:
(2) The overall grant rate increases from 0.9% to 34% following a CVSG from the Court; in other words, the Court is 37 times more likely to grant a petition following a CVSG. For petitions on the paid docket, the grant rate increases even more, to 42%; a paid petition is 47 times more likely to be granted following a CVSG.
The SG is likely going to be pivotal
What the SG — which is yet to be named by the incoming administration of President-elect Donald Trump — ultimately tells the court is likely to play a big role in whether the appeal moves forward.
More from the academic paper cited above:
(3) The Supreme Court follows the recommendation of the SG 79.6% of the time, when the SG recommends either a straight grant, deny, or grant/vacate/remand (“GVR”).
So while the fact that the SG is involved at all increases the odds of the case being heard, the content of what the SG ultimately says will factor in, as well. If the SG says the case is worth reviewing, we get closer to the NJ sports betting case being argued before SCOTUS.
Also of note, the two lead attorneys in the case — Ted Olson (representing NJ) and Paul Clement (leagues) — are former Solicitors General.
Another paper that looked at trends in grants and denials of SCOTUS appeals notes that from the period of 2001 to 2015, Olson and Clement were among the most successful attorneys in getting appeals granted.
We’re now in an uncertain timeframe as far as when a new SG will weigh in on the case, and when SCOTUS will again consider the appeal.
But if you put a bet down on the court eventually hearing the case, you’re more likely to see a return on your money today than you were previously.