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The case is about both states’ rights and sports gambling. Here’s a look at what you need to know about the case.
The case centers around a 2014 New Jersey law in which it partially repealed its own sports betting ban. That law was an attempt to allow the state’s casinos and horse betting tracks to offer sports wagering by working around a federal law — the Professional and Amateur Sports Protection Act — that largely bans sports betting. (It grandfathered in Nevada sports betting and limited forms of wagering in other states.)
PASPA gives standing to sports leagues and organizations — in addition to the Department of Justice — to challenge laws that they believe run counter to the law. The NCAA, the NFL, the NBA, the NHL and Major League Baseball used that power to challenge New Jersey’s law in court as illegal under the ban. So far those leagues have won every step of the way in the federal court system.
New Jersey is arguing that PASPA is unconstitutional, in that it commandeers states into acting on the federal government’s behalf. (Gov. Chris Christie‘s name is on the case because he signed the bill into law.) The nation’s highest court will try to determine which side is right, in its view.
While the state is using the law to offer sports betting, legal analysts believe the case could have potentially wide-ranging implications for states’ rights.
New Jersey has twice tried to enact sports betting laws that challenged PASPA. The first effort, which started in 2012, was defeated without reaching SCOTUS.
The 2014 law took a different tack with a repeal the state hoped would pass muster under PASPA, or force a decision that declared PASPA unconstitutional. However, New Jersey again lost, first in US District Court and then again the in US Third Circuit Court of Appeals.
That’s where things got interesting. After initially losing 2-1 in front a panel of three Third Circuit justices, New Jersey requested an en banc hearing of all the justices on the circuit. It was a long shot that was granted.
However, the state also lost that appeal in the summer of 2016. Like it did the first time around, the state again appealed to the Supreme Court. That, again, appeared to be a longshot. The odds got even worse when the US Solicitor General told SCOTUS that it should not take up the appeal.
New Jersey’s hot streak continued, however, and SCOTUS granted its petition for appeal in June. That brings us to oral arguments, which take place at 10 a.m. Eastern on Monday, Dec. 4.
Lawyers for New Jersey and the sports leagues will present their arguments over the course of an hour. Ten minutes of the half hour allotted to the NCAA et al will go to the Solicitor General, which requested the time and sides with the leagues. The two lead attorneys in the case — Ted Olson (representing NJ) and Paul Clement (representing the leagues) — are former Solicitors General.
Oral arguments give lawyers the chance to plead the cases they’ve already made in detail via a series of briefs submitted to the court. They are mostly for show, as the briefs and the contemplation of them and associated laws are the main way the court’s nine justices will come to a decision. But oral arguments also provide a window into what justices are thinking when they ask questions of counsel for either side.
There are no cameras (ie there will be no live stream of the proceedings) or electronic equipment allowed in the chamber, so what takes place inside won’t be known until afterwards. (Legal Sports Report will be present at oral arguments and will report immediately afterward.)
The entire range of potential outcomes is a fairly long list. But most of them boil down to the court ruling one of two ways on the top level — that PASPA is either constitutional or not.
Here is a look at some of the most likely ways the court could rule:
This is just a partial listing of outcomes. There are a variety of other ways the court could find with perhaps less likelihood of occurring.
What the court will ultimately find in the case is a matter of speculation — or handicapping, to borrow a term from gambling. But SCOTUS doesn’t often take cases just to reaffirm a lower court’s ruling. After all, only a small percentage of appeals are taken by the court. At least four justices thought the case was worth hearing — that’s the number required to grant an appeal.
Most legal analysts seem to think New Jersey coming out of the case being able to offer sports betting is about a coin flip to a small favorite. A decision that PASPA is entirely unconstitutional would probably be about a coin flip, as well.
The case will not be decided on Monday. SCOTUS has a schedule of when it releases its decisions; here it is for the current term:
So a decision will be rendered by the end of June at the latest. It will likely come earlier than that, although the January date seems extremely unlikely.
New Jersey’s repeal goes into effect immediately. The state, however, has basically enacted a law that does not create governmental regulation; after all, the NJ law is all about simply repealing its prohibition, not taking any affirmative action in regards to sports wagering.
It would also open up other states who want to legalize regulate sports wagering. Several states have already taken action on this front — notably Pennsylvania and New York — and more are likely to follow.
In any event, it would lead to a massive and likely rapid expansion of legal sports wagering options in the US.
If New Jersey loses and PASPA stays on the books as good law, it’s back to the drawing board for the state and sports betting proponents. The federal ban would have to be repealed, amended or replaced by Congress, in that event.
New Jersey could try the so-called “nuclear option” — a full repeal of its sports betting ban that would allow unregulated sports wagering anywhere in the state — although that seems unlikely.
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