The Aftermath Of The NJ Sports Betting Case: Trying To Count SCOTUS Justices' Votes – Legal Sports Report


Justices scotus christie vs ncaa

A former colleague pointed out to me that covering a US Supreme Court case is not that much different from covering sports, which I have done for most of my adult life.

Granted, it would have helped to have a degree in constitutional law or a better read on interpreting what the SCOTUS justices say. But watching the oral arguments from Christie vs. NCAA the case about the possible legalization New Jersey sports betting and the constitutionality of the federal sports wagering ban — on Monday felt somewhat familiar.

At the end of the day, Monday was about scorekeeping, without an actual scoreboard. It was about who won and who lost.

Yes, people are interested in the underlying constitutional issues and what the court finds when it comes to federalism and states’ rights. But more, people were interested in what the hour of arguments meant for New Jersey’s underlying chances of winning or losing.

My sense of things was that the NCAA’s side — which wants to keep the Professional and Amateur Sports Protection Act in place — faced more and tougher questioning than New Jersey’s side of things. Several justices seemed far more skeptical of the NCAA’s argument than Christie’s.

That was a sentiment shared by many, from the non-lawyers, to the gaming and other attorneys in the room, to the media members that cover SCOTUS for a living.

All that being said, here’s some of the handicapping and justice counting that we’ve seen about the final outcome.

Who was talking to whom in Christie vs. NCAA?

One of the most compelling arguments I saw about how the justices was from ESPN, who talked with Dr. Adam Feldman. He founded a quantitative research site about SCOTUS:

Here’s what he had to say; Ted Olson represented New Jersey, while Paul Clement represented the NCAA:

The justices also tend to vote against the side they interact with more. Here, while Justices Sotomayor and Kagan were more engaged with Olson, Chief Justice Roberts and Justices Breyer, Kennedy, Gorsuch and Samuel Alito were more active in the discussion with Clement.

Although Justice Thomas hardly ever speaks during oral arguments, he tends to vote with the Court’s right wing, which includes Justices Alito, Roberts and Gorsuch, and so if they all vote against the sports leagues we can expect Justice Thomas to as well.

That gets us to 6-3, which was a common vote that many put out there after Monday’s arguments.

Justices for NJ?

Many major news media organizations have people dedicated to following what happens at SCOTUS. That makes sense because many of the most important and controversial issues in the US eventually find their way to the nation’s highest court.

Those journalists cover SCOTUS day in and day out, and are used to trying to handicap what they would do. So where did they come down?

Washington Post

Headline: N.J. argues that it can legalize sports betting, and Supreme Court seems to agree

A majority of the Supreme Court seemed ready Monday to allow New Jersey to proceed with its plan to legalize sports betting at casinos and racetracks…

The Post put Chief Justice John Roberts, along with justices Samuel Alito, Neil Gorsuch, Stephen Breyer and Clarence Thomas in the camp likely siding with New Jersey.

New York Times

Headline: Justices Skeptical of Sports Gambling Ban

The Times didn’t do any specific vote counting, but it also had a majority in New Jersey’s camp. Most of the vote counting around multiple media outlets included Justice Anthony Kennedy on NJ’s side, as well, which the NYT appeared to do.

A majority of the justices indicated that the law had crossed a constitutional line by requiring states to do the bidding of the federal government.

Also…

Others also agreed that the Court was leaning NJ’s way:

  • NPR’s Nina Totenberg: “When all was said and done, it looked very much as though five or more justices had serious doubts about the current law.”
  • Associated Press’ Jessica Gresko: “In a case being closely watched by states interested in allowing betting on sports, the Supreme Court indicated a willingness Monday to side with New Jersey’s effort to permit sports gambling.”
  • NBC’s Pete Williams: “The billions spent on legal sports betting in Las Vegas stays in Las Vegas. But the U.S. Supreme Court seemed prepared Monday to bust Nevada’s monopoly.”

Non-SCOTUS media

Similar to the SCOTUS media, lawyers who have followed this case or parachuted in largely handicapped it for New Jersey:

  • Andrew Brandt, Sports Illustrated: “If pressed to hazard an informed call, I would predict a 6-3 judgment in favor of New Jersey.”
  • Cato Insitute: “By my best count, the vote should be 6-3, with Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in dissent.”
  • More vote counting here.

Groupthink, or an actual good day for NJ?

You could theorize the people in the room were overly optimistic for New Jersey’s chances, especially since the state has never won in this case in the lower courts.

However, it’s pretty difficult to be dismissive of a lot of people coming to the same conclusions, often independently. While the gaming industry and lawyers can definitely be victims of groupthink, the SCOTUS media came to the same conclusion in assessing New Jersey’s chances outside of that bubble.

I think it all means we can safely say make the over/under on justices siding with New Jersey in the final decision — either with a full repeal of PASPA or a narrower victory — is 5.5.

And that means the odds have certainly been tipped more heavily in New Jersey’s favor.

That still doesn’t mean NJ will win

Counting votes just based on an hour of oral arguments is still dicey business.

A lot will go on before we finally hear a decision, likely sometime in the first half of 2018. The justices will confer behind the scenes on the case, and try to get to a decision that the majority of the court agrees with.

Simply put: Don’t take out a second mortgage betting on New Jersey to be the ultimate victory in Christie vs. NCAA.


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