The New Jersey sports betting case is stuck in limbo.
The US Supreme Court was expected to reveal whether it would grant the state’s petition in its ongoing effort to legalize sports wagering within its borders on Monday morning. But the court did not say one way or the other what it would do with the case.
The move bucked expectations, but it is heartening to legal analysts who think New Jersey has a case on the merits. The court agrees to hear appeals in only a fraction of the cases that are brought before it.
It looks like we will find out Tuesday what SCOTUS has planned, but even that is not a guarantee.
Reading the tea leaves for NJ sports betting
We still don’t know if New Jersey will get its day in the nation’s highest court. Figuring out what the case’s absence on Monday’s order list meant was initially a guessing game.
Before Monday’s order list was revealed:
1/2 US Supreme Court has at least five options in ruling on the cert petitions today in NJ case: (i) grant; (ii) deny; (iii) relist;…
— Ryan M. Rodenberg (@SportsLawProf) June 26, 2017
2/2 …(iv) request additional briefing (e.g. on key issue raised by amici); or (v) summary disposition (e.g. GVR, dismissal).
— Ryan M. Rodenberg (@SportsLawProf) June 26, 2017
And then after, we learned that the case would like be the subject of a conference today, with an announcement possible on Tuesday:
Wait there’s more. #SCOTUS may be convening a “cleanup conference” today with more orders issued tomorrow, per the indispensable @SCOTUSblog
— Daniel Wallach (@WALLACHLEGAL) June 26, 2017
Official SCOTUS docket has been updated to reflect that NJ sports betting case is at conference (again) today – https://t.co/XdxkCoS2Ad
— Ryan M. Rodenberg (@SportsLawProf) June 26, 2017
So it appears the delay will be a brief one. However, there is still a possibility we could have to wait until the fall, when the Supreme Court reconvenes.
If SCOTUS grants the appeal, more briefs will be filed and eventually oral arguments will be held in front of the court’s nine justices. New Jersey would have to convince five of them to side with it against PASPA in order to win.
If the appeal is ultimately denied, it’s the end of the road for the state in its legal challenges.
How did we get here?
The state has twice passed laws attempting to legalize sports betting, but those efforts have been turned back in federal court multiple times. The latest defeat came in the US Third Circuit Court of Appeals in front of an en banc panel of judges in August.
NJ had made its case to the nation’s highest court last fall. The SCOTUS appeal got a boost when the court asked the US Solicitor General to weigh in. But the SG’s office ultimately recommended that the Supreme Court not hear the appeal.
New Jersey has been fighting a federal law — PASPA — that prohibits single-game wagering outside of Nevada. The plaintiffs in the federal case — the NCAA, NFL, MLB, NBA and NHL — have used PASPA to stop New Jersey from altering its law to allow sports betting.
Other paths to legal sports betting in the US?
New Jersey winning its case in front of SCOTUS is just one possible avenue to expanded legal sports betting:
- NJ state Sen. Ray Lesniak says he is going to attempt to pass new legislation that would allow New Jersey to skirt PASPA, even if the state loses again in court. However, it’s not clear if that bill will have the support to make it to the finish line. That effort would also likely be challenged in court.
- The most likely path forward is to change the law at the federal level. That would come via a repeal or alteration of PASPA in Congress, with lobbying efforts underway by the American Gaming Association.
- Other states could try to pass sports betting laws like New Jersey, in other to create a circuit split in the federal court system. This would make a Supreme Court review far more likely. The leagues would increasingly have difficulty proving “harm” from sports betting in any future case, meaning any state might be able to offer sports betting while the case is going on.
