By Julie Glass
One of the first issues Neil Gorsuch may face if he is confirmed by the Senate to join the Supreme Court is whether to declare the much-maligned Professional and Amateur Sports Protection Act (PASPA) unconstitutional—thereby legalizing sports betting across the nation.
Currently, the Supreme Court is considering whether to hear an appeal brought by Governor Chris Christie on behalf of New Jersey to legalize sports gambling within the state. The dispute made its way to the Supreme Court via two cases now consolidated as one: Christie v. NCAA and New Jersey Thoroughbred Horsemen’s Association v. NCAA. New Jersey argues that PASPA, a federal law that bans sports betting outside of grandfathered states such as Nevada, unconstitutionally commandeers the state’s regulatory power.
The case is a golden opportunity for a states’ rights champion like Gorsuch to leave his mark, since it raises issues about commandeering, equal sovereignty of states, and even the selective federal enforcement of PASPA, given that sports betting is outlawed but Daily Fantasy Sports are somehow permissible.
“This case transcends sports betting and is a part of a much broader debate on the powers and limits of federal authority,” says Daniel Wallach, an attorney and sports gambling law expert. “New Jersey’s challenge to PASPA could be a vehicle for conservatives to flesh out the commandeering powers. It is not just a simple policy issues as to whether sports betting is good or evil. It is a true constitutional issue that is right in the federalism wheelhouse.
“I believe a conservative Justice like Gorsuch and a conservative Solicitor General are more likely to want to see the case heard. If you are playing the odds here, signs would point to the Court granting cert.”
Indeed, a grant of certiorari to hear the merits of the case—something the Court only does for about one percent of the 7,000 cases appealed to it each year—appears likely. Last month, the Court called for the views of the Solicitor General, which means that the current eight justices believe that the case is significant enough to ask the federal government to weigh in, even though it isn’t a party to the original lawsuit.
Historically, when the Court calls for the views of the Solicitor General, it almost always then hears the case—according to Wallach, in each of the last 20 times the Solicitor General has recommended for the Court to grant certiorari, the Court has done so.
“At this point, who President Trump nominates as Solicitor General is even more important than the ninth Supreme Court Justice,” Wallach says. “The next Solicitor General is the critical gatekeeper on the initial question as to whether the Court hears the merits of the case or not. So this is a rare opportunity for Trump to directly leave his mark on the issue of sports betting.”
Trump openly campaigned for legal sports betting when he was an Atlantic City casino owner and possibly still wants to throw a political bone to Christie, who is treating this case as a legacy defining one. Gorsuch’s selection over Thomas Hardiman, who was considered the other finalist for the Supreme Court nomination, also provides a boost to the potential for legal sports betting. Hardiman voted against New Jersey when the matter was in front of the Third Circuit last year.
Had Hardiman become the ninth Supreme Court Justice, he would have had to recuse himself from the case. Consequently, New Jersey would have needed to win five of eight judges, since a 4-4 tie would leave in place the Third Circuit’s prior decision.
With Gorsuch, sports betting advocates now have a sympathetic ear and a chance at actually succeeding on the merits—assuming the Solicitor General aligns with Trump’s prior desire to legalize sports betting.
“It has not come this far for Donald Trump to fumble the snap,” Wallach says. “He has been given an opportunity to immediately change the landscape of sports betting in this country without requiring an act of Congress. This is a slam dunk I do not believe he will miss.”