Acting US Solicitor General Likely to Advise Supreme Court to Deny NJ Sports Betting Appeal

The hopes of New Jersey legislators that the US Supreme Court (SCOTUS) will accept the state's appeal in the long-running “Christie II” legal battle may have taken a turn for the worse, if the latest unconfirmed reports from the nation's capital can be believed. Posting on social media recently, prominent Competitive Enterprise Institute (CEI) advocate Michelle Minton has claimed that the current acting US Solicitor General, Jeffrey Wall, is likely to recommend to the Supreme Court that it not hear the appeal by New Jersey and the state's Throughbred Horsemen's Association in the case.

Wall, who serves in an interim capacity as USSG until potential permanent replacement Noel Francisco's nomination is approved, entered the Christie II legal battle back in March. Back then, the Supreme Court assigned the possible Christie II appeal to Wall, asking him for a recommendation on whether the full SCOTUS should take a look at the case.

The Supreme Court uses the Solicitor General's recommendations as one way to winnow the number of possible appeals it may hear. SCOTUS may still decline cases that the Solicitor General recommends be heard, but it almost never accepts cases that the Solicitor General believes have already been properly adjudicated.

That's why the unofficial report from Minton, a well-placed and highly regarded source on gambling-related legal matters, dampened many spirits. As Minton posted on Twitter, “Hearing chatter that Solicitor General’s office is ‘unlikely’ to recommend SCOTUS grant NJ’s PASPA appeal. Here’s hoping it’s wrong.”

There is still some hope, regardless. The Christie II case was one of only four potential appeals to have remained in limbo, neither accepted nor declined by the court, in January's SCOTUS list of decisions on hundreds of case where writs for certiorari (a motion for SCOTUS to accept an appeal) were pending. The length of time elapsed for preliminary Christie II consideration also slightly strenghtens the thin prospects. Wall has thoroughly examined the matter, including meeting with counsel representing New Jersey's legal interests last month.

The odd thing is that it may not matter as much now as it did back in 2011, when New Jersey's voters first approved legal sports betting in the state by referendum. Ever since that referendum – which passed by a 2:1 margin -- Garden State officials have been locked in a legal showdown against the US's major sports groups, who have sought to keep the overriding federal law, 1992's PASPA (Professional and Amateur Sports Protection Act), in place.

Yet PASPA itself is falling from favor, and states across the US continue lining up behind New Jersey, ready to legalize their own state's sports betting should PASPA be overturned. More likely, especially if the rumors about Wall's thumbs-down turn out to be true, is that PASPA will be gutted by federal overhaul before it's declared unconstitutional by the courts. PASPA has been shown to be bad, limited law, failing to curtail “illegal” sports-betting activity. The betting continues to expand; all PASPA ever did was drive it underground, thus robbing consumers of protection and government itself of billions of dollars in tax revenue.

Should SCOTUS eventually say no to hearing the Christie II appeal, that would be the end of the legal road for that battle. Another New Jersey legal attempt -- “Christie III,” perhaps? -- could follow, or another state could try a different legislative path. One thing seems certain: the PASPA era of a near-nationwide ban on sports betting in the US will end. Maybe as soon as 2018, a date recently mentioned by Monmouth Park officials. We shall see.