A ruling in the NJ sports betting case could be days or weeks away, but here's how SCOTUS will reach it
Legal Sports Report

Making Supreme Court Sausage: How the NJ Sports Betting Decision Will Be Made

SCOTUS NJ sports betting decision

Reading the US Supreme Court’s imminent ruling in the New Jersey sports betting case — whenever it is released — will likely be a chore.

Supreme Court decisions are often quite long, with 20-50 page rulings commonplace.  Legal jargon and frequent citations to old cases provide near-continuous interruptions. And, if the nine justices do not reach a unanimous decision, the ruling could be splintered with one or more separate “concurrences” or “dissents” tacked on after the main “majority” decision.

With a decision in the case coming anytime between now and the end of June, Legal Sports Report provides a primer on what the most consequential sports betting court decision ever could look like after the Supreme Court’s sausage-making is complete.

Parts of a Supreme Court decision

With the rare exception of so-called “plurality” decisions, Supreme Court rulings must garner the support of at least five justices. All nine justices participated in the NJ sports betting case — there were no recusals or vacancies—so the resulting vote could be 5-4, 6-3, 7-2, 8-1, or 9-0.

One of the justices in the majority is then assigned to write the decision for the Supreme Court. If Chief Justice John Roberts is in the majority, he makes the assignment and can assign the ruling to himself or someone else. If the Chief Justice is in the minority, then the most senior justice in the majority would assign the decision. Justices Anthony Kennedy, Clarence Thomas and Ruth Bader Ginsburg — in that order — are the three most senior justices.

In a small percentage of cases, a specific justice is not named as the lead author for the majority. These are called “per curiam” decisions. The most widely read per curiam decision in recent times is Bush v. Gore, the Supreme Court case that decided the 2000 presidential election.

The majority decision reflects the controlling ruling of the Supreme Court. In the pending sports betting case, the majority decision will determine if New Jersey — and many other like-minded states — will be able to allow legalized sports wagering.

Those who agree or don’t agree…

Beyond the majority decision, individual justices are also permitted to write a “concurrence” or “dissent.”

Concurrences are written if one or more of the justices agree with the result in the case, but would have reached the result with a different rationale.

A written dissent is utilized if a justice in the minority wants to explain why the majority is incorrect.

And, to complicate matters even further, sometimes there are partial concurrences and partial dissents, which is why Supreme Court decisions are often broken up into various sections with Roman numerals and subheadings.

A hypothetical SCOTUS sports betting decision

Based on the substance of the Dec. 4 oral argument in the case, one plausible — yet still speculative — outcome could look like the following:

  • The Supreme Court votes 6-3 in favor of New Jersey, finding the partial federal sports betting ban in the Professional and Amateur Sports Protection Act (PASPA) to be unconstitutional. Roberts and Kennedy, Thomas, Stephen Breyer, Samuel Alito and Neil Gorsuch comprise the majority.
  • Roberts assigns the drafting of the opinion to Breyer. Breyer’s resulting decision favors New Jersey and other states looking to legalize sports betting, but the ruling stop there: it makes clear that the underlying rationale only applies to PASPA and should not be construed to attach to anything broader, such as federal enforcement of marijuana laws.
  • Gorsuch, Alito and Thomas all agree with Breyer’s decision, but would further reinforce state rights vis-à-vis Congressional power. Together, the three right-leaning justices pen a separate concurrence to explain why the PASPA-related decision should have broader federalism implications.
  • Ginsburg, Sonia Sotomayor and Elena Kagan collectively write a dissent in support of Congressional power over sports betting, but make clear that their dissent does not spill over to hot-button issues like federal immigration policy.

Other options for SCOTUS

Although unlikely, there are a number of possibilities other than a direct “New Jersey wins” or “New Jersey loses” ruling.

The Supreme Court could opt to dismiss the case as improvidently granted if a majority of the justices determine—after further review following oral argument—that the lawsuit contains some defect making it a poor vehicle for a conclusive decision about the constitutionality of PASPA or the permissibility of New Jersey’s “partial repeal.” If this happens, then the lower court’s decision in favor of the five sports leagues who initiated the case will remain in place.

The Supreme Court could also move to set the case for re-argument at a later date, with instructions that both sides file briefs to address an additional issue that was not adequately addressed before. An example of such an issue could be the concept of “equal sovereignty” between the states and PASPA’s mandate that Nevada and a small number of other states be exempt from the law’s restrictions.

The chances that SCOTUS would choose either options are remote.

Preempting the Supreme Court

The parties in the case — the sports league plaintiffs (NCAA, NBA, NHL, NFL and Major League Baseball) or the New Jersey defendants — could also try to take action and prevent a Supreme Court decision from being released at all.

“At any stage of the proceedings, whenever all parties file with the Clerk an agreement in writing that a case be dismissed…the Clerk, without further reference to the Court, will enter an order of dismissal,” states Supreme Court Rule 46.

Rule 46 allows the parties to settle the case prior to a decision. Although ex-Gov. Chris Christie opened the door to settlement talk prior the oral argument hearing, there were no public comments from sports league executives expressing similar sentiments.

In addition, Supreme Court Rule 21 allows the plaintiffs, defendants or both to alert the Supreme Court of an important change of circumstances that could serve to impact the entire case.

Specifically, Rule 21 allows for a “motion to dismiss as moot (or a suggestion of mootness)…the granting of which would dispose of the entire case” to be filed by either side. Mootness sometimes arises in on-going cases when a drastic shift in actions or legal positions results in the case losing its required status as a live “controversy” under the Constitution.

There is no evidence that either of these possibilities are being actively pursued.

The new name of the case

There has already been one big change in the case.

Whenever the Supreme Court releases its decision, Christie’s name will no longer appear in the heading.

Lawyers for the state recently filed a letter to SCOTUS under Rule 35 “to notify the Court regarding a change to certain of the public officers who are parties to this appeal.”

“On January 16, 2018, Philip D. Murphy succeeded Petitioner Christopher J. Christie as Governor of New Jersey,” wrote one of New Jersey’s attorneys.

The caption of the case will now be Murphy, et al. v. NCAA, et al.

Ryan Rodenberg
- Ryan Rodenberg is an expert on sports law analytics that works as a professor at Florida State University. He is also a researcher and a writer.