Garden State Update - Part II
December 12, 2013
By Bruce Marshall
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CHRISTIE AND SCOTUS
Well, that didn't take long.
After losing his latest round in court as he attempts to legalize sports betting in New Jersey, Gov. Chris Christie waited about as long as it takes an NJ Transit train to get from Trenton to Newark to begin the process of asking the U.S. Supreme Court to decide the matter.
Let us digress for a moment. Last week, we refreshed everyone's memory about the timeline of Christie's challenge and what has transpired to date. To summarize, New Jersey has already lost three rounds in court as it seeks to overturn the 1992 Professional and Amateur Sports Protection Act, wherein select states (Nevada, Oregon, Delaware, and Montana) were "grandfathered" by federal law to accept sports wagers, though only in Nevada would it include single-game bets; it would be parlay cards for the rest. With the Third Circuit Court of Appeals in Philadelphia having rejected to even hear Christie's latest appeal in early November, the "Big Man" was left with one last option...the U.S. Supreme Court. Christie thus wasted only a handful of the ninety days he was allotted to decide if he wanted to take the matter to the highest court in the land.
"Gov. Christie has said all along this issue should be decided by the U.S. Supreme Court, and that's what he hopes will happen next," said Colin Reed, a Christie spokesman. "He has asked the attorneys representing the state to file the necessary paperwork. The people of New Jersey voted overwhelmingly to bring sports betting to New Jersey, and the Governor agrees with his constituents and will not give up this fight."
Now, getting the Supreme Court to hear the case is another matter. Legal scholars have suggested to us that it is no certainty that the high court will even entertain New Jersey's case to make sports gambling legal in the state.
Some gaming proponents, however, believe Christie might have a decent shot to be heard in D.C., especially since one of the three judges who ruled on the case at the Circuit Court level agreed the 1992 federal statute was unconstitutional. Offering his dissent in the 2-1 decision, Judge Thomas Vanaskie agreed substantially with his two colleagues but differed in his interpretation of PASPA, the previously-referenced law that allows state-sanctioned sports gambling only in Nevada and three other states.
"PASPA attempts to implement federal policy by telling the states that they may not regulate an otherwise unregulated activity," Vanaskie wrote. "The Constitution affords Congress no such power."
Other than the Supreme Court, there is one other route to legalizing sports wagering in New Jersey and elsewhere that Judge Michael Shipp suggested when rendering his initial verdict in U.S. District Court last March. In his ruling, Shipp conceded that some of the questions raised in the New Jersey case were novel, but suggested the best way to change the U.S. law was to get Congress to repeal or amend the 1992 Professional and Amateur Sports Protection Act.
No one, however, is going to hold their breath for that to happen anytime soon. Proponents of legalized sports gaming nation-wide are effectively reduced to waiting for Christie's Supreme Court challenge. Which, if Christie succeeds in getting the case heard, presents all sorts of fascinating possibilities. Including some dicey ones for the positions of the pro sports leagues and the NCAA, which would have a much better chance of mobilizing their usual brand of influence over members of Congress than they would the nine-member Supreme Court.
Indeed, we have sought enough opinions from the legal community to conclude that it would be anyone's guess as to what might eventually transpire were the Supreme Court to become involved. By a slight margin, the majority polled suggest that the nine justices might be more likely to rule along the lines of Judge Shipp at the District Court level, upholding PASPA as a matter of constitutional law...and that New Jersey, being in conflict, must yield. Although the dissenting opinion by Judge Vanaskie in the Circuit Court would also suggest there is another interpretation that could possibly be adopted by the Roberts Court.
Consider, however, that predictions on outcomes in the Supreme Court are always tricky at best. Broadly speaking, SCOTUS, as currently constituted, has effective alliances on the left (Ginsburg, Breyer, Sotomayor, & Kagan) and right (Scalia, Alito, Thomas, Roberts), with Justice Kennedy often providing the "swing" vote. But these alliances have never been etched in granite; remember, it was Chief Justice Roberts, breaking with Scalia, Thomas & Co., who effectively saved the Affordable Health Care Act in June of 2012. An oddball case such as upholding PASPA in the face of a sports gaming challenge from New Jersey makes a SCOTUS forecast even harder to gauge. Is this the type of issue that can be really be defined on the sort of philosophical or constitutional grounds that often keep the likes of Sotomayor and Alito on different sides of the fence?
Which is why most suggest the NFL, in particular among the plaintiffs, would feel unusually powerless at the possibility of Supreme Court involvement. The influence peddling at which the pro sports leagues (specifically the NFL) are so adept and able to sway the politicians is not going to work with Antonin Scalia.
Not surprisingly, the national sports media have been mostly mum on this subject matter, with few probing editorial pieces on the issue. We are hard-pressed to recall one in-depth feature on the New Jersey/Christie PASPA challenge. Although we cannot say we are surprised that the national media sources are shying away from serious coverage of the issue that would not be endorsed by the NFL or any of the pro sports leagues or the NCAA.
(And why is that such? We've got some ideas that we'll share next week.)
Indeed, we suspect the lack of an articulate and coherent voice on behalf of sports gaming is one main reason the sporting public is at all influenced by the predictable commentary from the NFL, NCAA, and others. On the rare occasions a platform has been granted by the media to the pro-gaming argument, it is usually to some football tout who often has trouble stringing together a couple of intelligible sentences. The more-serious spokesmen also often miss the mark as well as they forward time-worn angles that have never resonated with a media that is more interested in reinforcing the "dems and dese" stereotypes that are rarely going to portray them in a positive light...and always make the well-scrubbed NFL and NCAA anti-gaming interests look good by comparison.
What should be happening is more media scrutiny of the positions of the pro sports leagues and NCAA, rather than trotting out the occasional tout to do the bidding for the pro-gaming arguments. Which we will address when we conclude this trilogy next week.