It’s never smart to bet on the outcome of Supreme Court cases, but if I had to wager on the big federalism case disguised as a dispute over sports books, I’d double-down on New Jersey in its fight against professional sports and the U.S. government. In Christie v. NCAA, argued this morning, I’ll give decent odds that the state will prevail on its claim that the federal law that prevents states from legalizing sports-betting is unconstitutional because it “commandeers” state officials to enforce federal policy. By my best count, the vote should be 6-3, with Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in dissent.
Most striking was Justice Anthony Kennedy’s first question to the sports leagues’ super-lawyer Paul Clement. To paraphrase: How can it be that states don’t want a particular state law and Congress tells them they can’t repeal it? Justice Kennedy is known for being a big fan of constitutional structure as a goalkeeper of individual liberty, so if he views this as that kind of case, then here he will not be the “human jump-ball” of his critics’ description.
The newest member of Supreme Court bar discusses the argument.
Chief Justice John Roberts had similar qualms about the plays that the federal law’s defenders ran. Is it really the case, he seemed to say, that sports-betting becomes federally illegal only if made legal under state law? In other words, it’s a constitutional end-run for Congress to tell states they have to maintain bans rather than enacting a federal ban (assuming that’s within the lines of the Interstate Commerce Clause).
Perhaps the biggest tell regarding this case’s outcome was provided by Justice Stephen Breyer, who tends to wear his cards on his (robe’s) sleeve. During the opening drive by Ted Olson, lawyer for the Garden State and Clement’s former boss from the early Bush years, Breyer restated the bizarre nature of a federal law that purports to regulate states instead of individuals.
It’s possible that the vigorish argument by the deputy solicitor general Jeff Wall (my law school classmate) on behalf of the United States could give some of the justices pause, but his skilled working of the refs will likely fail to change the bottom-line result on the scoreboard.
One last-minute note: Before argument, Olson moved the admission of New Jersey Governor (and name plaintiff) Chris Christie to the Supreme Court bar. I look forward to seeing the guv around the water cooler in the lawyers lounge, where we can discuss a case that alas will no longer bear his name. Christie’s term ends Jan.16, so when the Court comes down with its decision, it will be announced as Murphy v. NCAA.