NY Times: Justices Skeptical Over Sports Betting Ban, Brennan Jr ‘No One Side Favored’

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Published on:
Dec/05/2017

In the Supreme Court, a federal law banning sports betting in all but a handful of states faced headwinds.  New Jersey brought forth the suit with the NFL, NBA, MLB and NHL seeking to prevent legalized sports wagering.

“The citizens of the State of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have,” Justice Anthony M. Kennedy said.

He said that crossed a constitutional line and blurred the political accountability of elected officials. “The citizen doesn’t know,” he said. “Is this coming from the federal government? Is this coming from the state government? That’s precisely what federalism is designed to prevent.”

Joe Brennan Jr., a long time advocate of a state’s right to offer legalized sports betting, believes the Justices were even-keeled.   

In a series of tweets Monday afternoon, Brennan Jr. wrote: “It was gratifying (if extremely uncomfortable) to be sitting there in the "Temple of the Law" after such an up-and-down battle since 12/2008. You had to take a moment to recognize the fact that the "highest court in the land" was sitting there, considering…

“If you haven't already read the transcript, please do so, though it's a bit one-dimensional. None of the intensity - on the part of the Justices, and on the advocates - is readily apparent.

“My impression from this hearing was that it was very even in regards to the level of and intensity of questioning by the Justices of both sides. No one got off easy, and both sides were brutally tested from the bench.

“For my part, I would disagree w/ anyone who says it was clear from the questioning that the Court favored one side or the other. Those who would are either not honest w/ themselves or w/you.

“Ted Olsen (4 NJ) barely had his first sentence out of his mouth before Ginsberg & Sotomayor jumped him. Breyer, Kagan & Kennedy all got in early too. What constitutes lawful "preemption" was the chief concern.  It was tough to sit there, listening to the Justices take shots & Olsen trying to respond in a polite manner. But he held firm. The Federal govt cannot compel the states to regulate something that it chooses not to regulate itself.

Arguing the other side of the case on behalf of the major sports leagues was former Solicitor General Paul Clement.

“Clement came up for the leagues, he took quick heat too. Kennedy: PASPA ‘binds NJ to a law it does not want’; & Kagan ‘What could NJ do?’

“Clement gives a clinical answer: ‘All prohibitions on demand side can be partially repealed’. Meaning, if the state wants, they can let citizens bet with one another or office pools. But no ‘commercial’ betting.

“This remained the most aggressive line of questioning for Clement/Leagues and the SG: how can NJ comply w/ PASPA legally other than to be forced to ban sports betting?

“Roberts put it best: ‘So, if 'state law' says you can do it, it's illegal. But if state law doesn't, it isn’t?’

Brennan, Jr. concluded:  “I doubt my opinion is any better than most, but anyone who sat in that Court & said they knew which way it would go...I just don't see it. People were talking splits ("5-4", "7-2", "Men v Women"). I don't buy any of it.

“I'm ultra-partisan on this issue, but even I had to admit that the hard questions of Olson by the Court & the solid performance by Clement makes it impossible to peg this one. I just can't call it from where I sit.

“If I am certain of one thing after today, it is this: it doesn't end here. The genie is out of the bottle. Whether it is this Court, or Congress, the law will change. Too many people want it that way.

“The next 3-5 years will be an onslaught of lobbying to determine who will regulate (Fed or State), who will operate, and who will win. That is certain.”

Brennan Jr. added: “Today was the end of the beginning for legal sports betting in the US. Tomorrow is when the real fighting will begin. Money. Leagues. Money. Govt. Money. Taxes. Money. TV. Money. Winners. Money. Losers. Money. I'll bet...”

- Gilbert Horowitz, Gambling911.com

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