U.S. Gambling Revolution Celebrates Its Fifth Anniversary

Sunday, May 14th marked the fifth anniversary of the historic U.S. Supreme Court ruling that voided a 26-year-old federal law that had handed Nevada a virtual nationwide monopoly on sports betting.

But while the 6-3 ruling created headlines around the world, insiders - especially in New Jersey, which won the case - already saw it coming many months earlier.

That's because of several previous events that gave such strong hints as to the outcome.

While New Jersey officials ultimately battled the NFL and four other sports organizations in court for six years, the turning point came in 2017.

At least 99% of cases appealed to the Supreme Court are denied, ending the legal challenge. Only a handful are accepted, and even fewer gain a special status: they are shipped over to the U.S. Solicitor General's office for review.

When that happened with the sports betting case in May 2017, it seemed to raise the stakes exponentially. That's because in the 20 previous instances where the Solicitor General - informally referred to as "The Tenth Justice" outside of the nine on the Supreme Court - either recommended or did not recommend that the Court take on the case, the Court accepted the recommendation all 20 times.

So no wonder that when the Solicitor General informed the Court that there were no Constitutional issues important enough to merit the Court's time, The Washington Post called the announcement "perhaps the death blow to New Jersey’s years-long quest to get legal sports betting in casinos and racetracks."

The Turning Point

Then a month later - in what The Post described in a headline as "a surprise move" - the Court ignored the recommendation and announced it was taking the case anyway.

"When they decided to take the case anyway, we knew we were in,” said former New Jersey state Senator Ray Lesniak, who pushed for sports betting in the state for almost a decade before the Court's ruling.

Four of the nine judges are needed for a case to be taken up, just one shy of a majority.

If that wasn't good enough news for New Jersey, in December 2017 a hearing in Washington D.C. before the justices convinced virtually everyone involved of the certainty of New Jersey's victory.

The withering questioning directed at former Solicitor General Paul Clement - appearing on behalf of the leagues - and Deputy Solicitor General Jeffrey Wall, representing the U.S. Department of Justice, provided that confidence.

For instance, a skeptical Chief Justice John Roberts challenged the government's claim that the Professional Amateur Sports Protection Act of 1992 (PASPA) did not rise to the level of unconstitutional "commandeering" because it did not in fact force states to enforce gambling prohibitions at the federal government's bidding.

"Is that serious?" Roberts asked Wall. "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."

“When I saw the Solicitor General being grilled about the idea of 12-year-olds being able to walk up to betting windows, I saw scowls on the faces of some of the judges,” Dennis Drazin, whose Monmouth Park racetrack was a party to the suit, said last year.

David Rebuck, the chief regulator for gambling in New Jersey, was in attendance along with Gov. Chris Christie.

"We were very pleased that we got our arguments out," Rebuck said last week. "Some of the people I respected a lot that maybe weren't even on our side came up to us and congratulated us."

In fact, at a gambling conference in London in February 2018, Rebuck warned sports betting operators: "Don't sit back and wait for the regulations. If you sit and wait, you will be left behind."

Rebuck chuckled as he recalled that Christie predicted just minutes after the Court hearing that the first legal bet in his state would come "within two weeks" of the seemingly-inevitable ruling. It turned out that 31 days was needed to set up the complete framework after the May decision was rendered - still an expedited timetable that Rebuck said came about precisely because of the likelihood of the result.

So while the fifth anniversary from May 14th, 2018 is celebrated, the dates and June 27, 2017 - the day the Court ignored the recommendation to pass on taking the case - and Dec. 4, 2017 - the day of oral argument before the Court - are remembered just as fondly by insiders.