The New Jersey sports gambling case made it to the Supreme Court as a discussion of states’ rights, and it continued on that path during hearings this morning, as justices peppered both sides with questions about the line between federal and state oversight, and whether a '92 law that kept sports wagering from spreading beyond Nevada crossed it. The court’s traditionally conservative justices seemed to be more amenable to New Jersey’s position, while those known to be more liberal challenged it vigorously.
In Christie v. NCAA, New Jersey not only challenges the constitutionality of a prohibition of sports betting that for 25 years has been supported by the NCAA and the four major pro leagues, but also seeks to circumvent it through a partial repeal of its laws against sports betting. The state argues that by allowing sports books in its Atlantic City casinos, but not taxing or regulating them, it is following the letter of the Professional & Amateur Sports Protection Act, which clearly did not contemplate the possibility that a state might allow a form of gambling that it could not tax and regulate.
That distinction led to what may have been the more telling moments of the hearing, when Chief Justice John Roberts challenged the federal government’s suggestion that it would be "fine" with a full repeal that allowed sports wagering that was unfettered by any restrictions at all. “Well, is that serious?” Roberts asked U.S. Deputy Solicitor General Jeffrey Wall during his argument, which took issue mostly with the fact that New Jersey’s repeal was only partial. “You have no problem if … a 12-year-old can come into the casino and -- you’re not serious about that.”
“I’m very serious about it, Mr. Chief Justice,” Wall responded. “The problem that Congress was confronting was state sponsored and sanctioned sports gambling schemes.”
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Another revealing moment came when Justice
Stephen Breyer, viewed as a liberal, boiled down New Jersey’s case into the contention that Congress has the right to govern interstate commerce in all 50 states, but that it cannot force states to do so. “I wish I had said that myself, Justice Breyer,” said former U.S. Solicitor General
Ted Olson, who earlier in the session had been challenged on the matter several times by the other liberal justices.
Whether Breyer will embrace that argument, or was merely clarifying it, remains to be seen. But on the court steps after the hearing, outgoing New Jersey Gov. Chris Christie pointed to the fact that both Breyer and Justice Samuel Alito, a conservative, raised similar questions about why Congress passed a federal law that invited individual state action, but then restricted it. “If the federal government wants to pass a law to regulate and preempt, they have a right to do that,” Christie said. “They didn’t do that. They foisted that upon us. This is the fear of every governor: that we’ll be at the mercy of the federal government and that they’ll make us pay for it. It’s not right. And I believe here that it’s very clear that the federal government overstepped its bounds.”
Christie conceded that the unregulated gambling that he has asked for this time around is not his preference, saying that he was forced to that point by the leagues and the NCAA. “I’ve always been willing to talk to the sports leagues,” Christie said. “The sports leagues have never been willing to talk to me. They thought they were going to get rid of us a long time ago. They never met me. They have now.”
