Here’s The Path To A Unanimous Decision In The Supreme Court Sports Betting Case

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Path to Supreme Court sports betting

The US Supreme Court sports betting decision, whenever it is released, could take many forms.

The ruling could involve a deep-dive into constitutional law, with an emphasis on the Tenth Amendment and the tethered ‘anti-commandeering’ doctrine that prevents Congress from dictating what a state can and cannot do. Or the Supreme Court could avoid the constitution entirely.

The decision could also be highly fractured with a razor-thin 5-4 vote tally. Or the decision could be relatively straightforward with a 9-0 vote. Or something in between.

No one outside the walls of the Supreme Court building will know for sure until decision day.

One possibility — a 9-0 vote that permits New Jersey to authorize sports betting under the state’s ‘partial repeal’ law but otherwise keeps the Professional and Amateur Sports Protection Act (PASPA) on the books for other states — could be attractive to a Supreme Court that is currently on an epic slow pace and needs to get some pending decisions out the door.     

And if that happens, the nine justices could make sure the sports betting case does not impact other issues like marijuana legalization and immigration policy.

Winners and losers in the sports betting case

Eleven months after taking the case, the Supreme Court’s task remains the same: A majority of the nine justices have to pick a winner.

The five sports leagues who originally sued Gov. Chris Christie — the NCAA, NBA, NHL, NFL and Major League Baseball — could win, meaning their lower court victory would be preserved and PASPA’s restrictions on states would persist.

If New Jersey and current Gov. Phil Murphy prevail, sports betting will arrive in the Garden State within weeks. Sports betting may not immediately spread elsewhere, however, as any pro-New Jersey ruling could be nuanced.

Five votes are required to win, but unanimous 9-0 decisions happen frequently.

For example, when the Supreme Court last heard a sports-related case — American Needle v. NFL in 2010 — the justices unanimously ruled against the NFL by a nine-to-zero vote after the lower court had previously found in the NFL’s favor.  

Hints from the hearing

When the Supreme Court held its hearing in the sports betting case on Dec. 4, Justice Sonia Sotomayor expertly framed the case according to the three ways it could be analyzed. In so doing, Justice Sotomayor specifically alluded to one way that allowed the justices to “avoid the constitutional question” altogether.

The entire oral argument transcript can be found here.

Justice Sotomayor’s inquiry opened the door for newly installed Justice Neil Gorsuch to foreshadow what a relatively simple 9-0 decision could look like. In relevant part, here is how Justice Gorsuch re-framed the earlier comment from Justice Sotomayor.

“[W]e normally interpret statutes in ways to avoid constitutional difficulties,” he said.

Justice Gorsuch then served up a softball question to Ted Olson, the lawyer representing New Jersey before the Supreme Court

“But you…you’d take a win on statutory grounds, wouldn’t you?” he asked, alluding to a pro-NJ decision based solely on the statutory text of PASPA, not the Constitution’s Tenth Amendment.

Olson answered in the affirmative, of course.

Indeed, the Supreme Court has a long history of steering clear of knotty constitutional issues.

Avoiding the constitution

For decades, the Supreme Court has considered it a “well-established principle” to shy away from Constitution-based rulings if there is another option.

“[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” concluded the Supreme Court in a 2014 case.

A 1989 Supreme Court case explained the rationale for such a stance.

“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided,” wrote the majority decision.

If the current Supreme Court follows this path of least resistance, the chances of a unanimous 9-0 decision in favor of New Jersey increase considerably, as PASPA does not explicitly prohibit a state from fully or partially repealing its own sports betting laws.  Section 3702 of PASPA only makes it unlawful for a state to “sponsor, operate, advertise, promote, license, or authorize by law or compact” sports betting.

What to look for on decision day

If all nine justices agree that New Jersey’s “partial repeal” of its own sports betting laws as applied to casinos, racetracks and former racetracks complies with PASPA, Chief Justice John Roberts could assign the opinion writing to himself or anyone else.  That decision would be the ‘majority opinion’ of the Court.

The eight non-authors would then have the chance to chime in with anything they wanted to add via a ‘concurrence.’ For example, one or more right-leaning justices could pen a concurrence to emphasize that the Supreme Court’s sports betting decision should not be read to limit the executive branch’s enforcement of federal marijuana or immigration laws.  

The New Jersey case will have profound implications for sports wagering in the US, but all nine Supreme Court justices may want to restrict their decision to just that — sports betting.  

One way to do that is to focus only on PASPA, avoiding the Constitution.

May 14 is the next day the Supreme Court could issue a decision in the pending sports betting case.