In January of 2017, our nation’s Supreme Court justices shocked even the most knowledgeable of sports gambling law experts. Instead of outright denying the state of New Jersey’s appeal regarding their sports gambling case, the Court invited the acting Solicitor General to submit his view on the matter. For those of us who value the principle of federalism, sane regulation, and individual freedom, the move offered a much needed injection of optimism into a case that has surprisingly broad repercussions on matters beyond gambling. The question now remains: what will the solicitor general’s office do, and how will that affect the court?
I have detailed the case and the constitutional principles at stake numerous times. Briefly, it revolves around New Jersey’s attempt to repeal its laws that prohibit sports betting, a move our nation’s largest and most profitable sports leagues argue violates a federal law known as the Professional and Amateur Sports Protection Act (PASPA).
PASPA was originally enacted—at the behest of the sports leagues—as a means of halting the spread of sports gambling. This, they hoped, would protect the appearance of integrity within their games (read: their profits). It failed and instead created a monopoly on sports betting for Nevada and an enormous illegal sports betting market (estimated to be around $400 billion a year). It also prevented states from instituting consumer protections and collecting millions of dollars in tax revenue. Most importantly, PASPA’s existence weakened the principle of federalism—which prevents Congress from unduly influencing state matters, equality among the states, and the anti-commandeering doctrine, which prevents Congress from forcing states to act against their will.
After several failed attempts to enact legislation legalizing sports betting, the New Jersey legislature tried instead to repeal their own laws that expressly outlawed the activity. They hoped by decriminalizing, but not explicitly legalizing such betting, they could skirt PASPA’s prohibition against state-authorized sports betting.
Predictably, the sports leagues sued New Jersey. Disturbingly, two federal courts agreed with the leagues that PASPA not only prohibits states from authorizing sports betting, but even bars them from amending their own laws in a way that appears to conflict with the federal law.
In October 2016, New Jersey appealed the ruling to the Supreme Court. Three months later, though most of us expected the Court to deny NJ’s petition, they instead called for the views of the Solicitor General (in legalese, a CVSG).
Despite rumors that the Office of the Solicitor General (OSG) is “unlikely” to recommend the Court grant a hearing to New Jersey’s case, all hope is not lost.
First, it’s not surprising OSG would make such a recommendation. After all, the government has already staked and defended its position on PASPA in previous cases, which have turned out favorably for the government. It wouldn’t make sense for the office to recommend a review of an issue they believe they’ve already won, lest they risk the Court invalidating the law. In short: it’s an unnecessary risk.
That said, SCOTUS is under no obligation to follow the Solicitor General’s recommendation and it often does not. According to analysis, the current Court (minus Gorsuch) follows the Solicitor General’s recommendations about 70 percent of the time.
Furthermore, the fact that SCOTUS issued a CVSG increases the likelihood of the Court granting the case a hearing. Calling for the views of the Solicitor General requires a vote of at least four Justices. This means that half of the sitting Justices at the time had an interest in hearing the case.
According to a 2009 George Mason University study, a request for the Solicitor General’s views—regardless of the recommendation that results—makes it 46 times more likely the Court will hear the case. For context, SCOTUS granted a hearing to 42 percent of all the cases for which it issued a CVSG between 1998 and 2004. For New Jersey’s case, which started off with a snowball’s chance, a nearly 50-shot of getting a review from the nation’s highest court ‘aint too shabby.
Unfortunately, there is no rule about when the Solicitor General’s office must submit such opinions once requested. As of today, it has been just under four months since the request was made. While four to five months is typical, the lag between the call for views and the submission of them has been increasing in recent years with OSG taking about 6.1 months, on average, to respond to the Court’s invitation. This time around there might be even more of a delay, thanks to the fact that Congress is in the middle of confirming Trump’s Solicitor General nominee—Noel Francisco. It’s possible the OSG may want to wait until Francisco is installed before issuing its opinion.
Experts, however, expect OSG to file their opinion by the end of May as this gives interested parties time to file responses to the Solicitor General’s opinion and the Court time to consider everything before it recesses for summer. After that, we all get to wait until October—at the earliest—for the Court to make its final decision on whether or not it will grant New Jersey a hearing. Only then can we begin to worry about how the Justices—now joined by Gorsuch—might rule on the matter.
The road ahead is long, yet there’s plenty to be optimistic about. I, and many other scholars, believe the principles at stake warrant the Court’s attention. Should they decide to hear the case, the hope is that they will see—as we do—that PASPA is blatantly unconstitutional and ought to be struck down in full. But, as they say, the wheels of justice turn slowly. For the moment, we can only wait and hope that when the grind is over, our Constitution will emerge restored and fortified instead of judicial roadkill.