Biggest takeaways from NJ Supreme Court hearing

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Can NJ win battle to legalize sports betting? (3:13)

ESPN's legal analysts Ryan Smith joins OTL to provide an update on New Jersey's argument to have sports betting become legal. (3:13)

Editor's note: Contributor Ryan Rodenberg filed a July 2017 amicus brief in support of neither party during the Supreme Court case.

Questions from the U.S. Supreme Court justices came early and often during Monday's oral argument in the New Jersey sports gambling litigation.

Justice Sonia Sotomayor asked Ted Olson -- the lead lawyer for Gov. Chris Christie's side -- whether the state is even required to enforce its laws against sports betting under the Professional and Amateur Sports Protection Act (PASPA), the 1992 law passed by Congress limiting sports betting to Nevada and a small number of other states.

Justice Anthony Kennedy inquired if the interaction between federal sports betting restrictions and New Jersey's attempt to repeal its own laws "blurs political accountability."

And Justice Neil Gorsuch, the newest member of the Court, asked whether New Jersey would be comfortable winning the case on a narrow basis that avoided the thorny constitutional question altogether.

Of the nine justices, only one -- Justice Clarence Thomas -- refrained from asking any questions. In seeking to determine the outer limits of each side's argument, at least one general theme emerged from the questions posed.

"It appeared most of the Court was concerned with whether PASPA unconstitutionally commandeers New Jersey's efforts to address sports gambling," said Tamara Malvin, an attorney at Akerman LLP in Fort Lauderdale, Florida, who attended the proceedings.

The format of a Supreme Court oral argument -- quick questions followed by answers that are often interrupted mid-sentence by another question -- can lend to tense moments.

"[W]hat if the repeal is across the board, no exceptions?" Chief Justice John Roberts asked.

"If New Jersey just repeals its prohibitions, we have said we don't have a problem with that," answered Deputy Solicitor General Jeffrey Wall, a Trump administration lawyer appearing in support of the NCAA and the four major professional sports leagues that sued Gov. Christie.

"Well, is that serious?" Roberts replied. "You have no problem if there's no prohibition at all and anybody can engage in any kind of gambling they want, a 12-year-old can come into the casino and -- you're not serious about that."

Seconds later, Wall defended statements made by Obama administration lawyers during an earlier phase of the case when asked by Justice Ruth Bader Ginsburg whether such statements were now "inaccurate."

"No," said Wall. "I think we did not take into account the gamesmanship in which New Jersey was going to engage."

The back-and-forth between the Supreme Court justices and the lawyers for each side also resulted in a handful of lighter moments.

One of them generated audible laughter from the packed courtroom chambers after a lengthy comment from Justice Stephen Breyer summarizing New Jersey's core position.

"I wish I had said that myself, Justice Breyer," replied Olson, Gov. Christie's attorney.

What will the result be when the Supreme Court releases its decision in the case during the first half of next year?

"Judging by the questions asked during argument, a majority of the Court has serious concerns about the constitutionality of PASPA," said Christopher Soriano, a partner at Duane Morris LLP in New Jersey, who was also at the hearing. "I won't be surprised if this leads to legal sports betting in the near future."

For further insight on the substance of what was discussed during the hourlong oral argument session, I caught up with Dr. Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of EmpiricalSCOTUS.com, a quantitative research site.


Based on your review of the entire transcript, what were the major points made by each side?

Feldman: First off, there was an all-star lineup of advocates. All three attorneys that argued today were solicitors general at one point in time. That is a rare occurrence and speaks to the caliber of arguments and the stakes for both sides. The representative for New Jersey, Ted Olson, relied heavily on the Supreme Court's 1992 decision in New York v. United States, where the Court said that Congress can't tell the states how to regulate. The lawyer for the NCAA and the four major professional sports leagues, Paul Clement, focused on how the statute at issue, PASPA, pre-empts state law in the area of sports gambling but does not commandeer states to positively act in a certain manner.

In your analysis, were there any hints about one or two key issues that the justices were focused on?

Feldman: Several justices seemed interested in gauging the constitutionality of PASPA and whether it commandeered state action in a manner that violates the Constitution. They were also interested in whether PASPA is conversely an attempt to regulate interstate commerce, which is within Congress' purview.

How effective was Ted Olson on New Jersey's side compared to Paul Clement and Jeffrey Wall on the other side?

Feldman: The justices seemed more at ease with Olson's responses to their questions. They seemed skeptical of the non-commandeering argument set forth by Clement and Wall, the government's lawyer. In one instance Justice Breyer articulated Olson's argument so well that Olson responded, "I wish I had said that myself, Justice Breyer."

Of the nine justices, who were the most active in questioning each side?

Feldman: Justice Sotomayor was most active in questioning Olson. She asked 19 questions during his 30-minute time slot, which was the most of all justices during any portion of the oral arguments, and she spoke almost twice as much as the next-most talkative justice, Justice Elena Kagan. No justice spoke as much during Clement's argument. During that argument, Chief Justice Roberts and Justice Breyer were the most engaged justices.

What clues did you find that may indicate how certain justices may rule?

Feldman: There are certain hints that suggest New Jersey may win the case, potentially paving the way for legalized sports gambling. The justices side with the petitioning party -- New Jersey, in this case -- in around 60 percent of cases, so the petitioner tends to have an advantage at the outset. 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.