By Bill Finley
When the Supreme Court of the United States hears oral arguments in a case it is always a guessing game as to what the court’s final decision will be, but legal scholars can often accurately predict the outcome based on the questions the justices ask during the arguments. And virtually every expert who weighed in on the subject yesterday was predicting that New Jersey would prevail in its attempts to legalize sports betting at the state’s racetracks and casinos.
Agreeing that the tenor of the questions seemed to suggest a majority of justices will vote in favor of New Jersey, Dennis Drazin, an attorney, who heads the management group that runs Monmouth Park, said: “That feeling is based upon the questions from the court and the clear understanding I have based upon all of the law in the case and the arguments we made. I have lived this case now for five years and understand clearly what all the questions meant. It seems to me that the majority of the justices are in our favor. I’m cautiously optimistic, but I do think New Jersey will prevail when the court issues its decision.”
The Associated Press’s coverage of the day’s event was topped by a headline that read: “Court suggests it may side with NJ in sports betting case.”
Writing for the website of the Cato Institute, a self-described think tank devoted to the principles of individual liberty and limited government, Ilya Shapiro wrote: “It’s never smart to bet on the outcome of Supreme Court cases, but if I had to wager on the big federalism case disguised as a dispute over sports books, I’d double-down on New Jersey in its fight against professional sports and the U.S. government. In Christie v. NCAA, argued this morning, I’ll give decent odds that the state will prevail on its claim that the federal law that prevents states from legalizing sports-betting is unconstitutional because it ‘commandeers’ state officials to enforce federal policy. By my best count, the vote should be 6-3, with Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in dissent.”
New Jersey largely based its case on the 10th amendment, which covers states’ rights. The 10th amendment can be interpreted that, with the exception of matters clearly covered in the U.S. Constitution, federal laws cannot supercede state laws. A federal law known as The Professional and Amateur Sports Protection Act of 1992 (PASPA) outlaws sports betting outside of Nevada and three other states that have limited forms of sports betting.
The Supreme Court is expected to announce it decision some time in the spring. When it does and if New Jersey wins, Monmouth Park would open up a sports book shortly after the decision was made public. The best case scenario for Monmouth may be that the verdict comes before the start of the NCAA tournament, which is wildly popular with bettors.
Should the court rule in favor of New Jersey, the decision could still go in two different directions. By legalizing sports betting at racetracks and casinos only and allowing it without any state regulation, New Jersey has gone in a direction its advocates refer to as a “partial repeal of PASPA.” If the court rules that only such a partial repeal can be allowed then New Jersey would be the only state allowed to have sports wagering. However, that decision would open the door for other states to push for legislation that would allow for sports betting under the same scenario that made it legal in New Jersey. The other option is that Court rules that PASPA is unconstitutional. If that happens, the avenue to allowing sports betting across the country would include few roadblocks and it would be expected that many states would soon follow New Jersey’s lead and that sports betting would likely eventually wind up being permissible online.
“Although I have a strong feeling New Jersey will be successful, I am less clear on which way the court will decide the case amongst the various choices: a partial repeal of PASPA or declaring that PASPA is unconstitutional,” Drazin said.
Drazin has said his preference would be for the court to decide on only the partial repeal because that would lessen the competition for Monmouth and, at least in the short term, likely give only bricks and mortar facilities the right to accept sports bets.
Should the Supreme Court legalize sports betting, the matter could still end up before Congress. Many believe that the NCAA and the professional sports leagues will ask Congress to do something because that would be preferable to having different laws in different states, most of which probably wouldn’t have any provisions for the leagues to share in sports betting revenue.