Will Gov. Christie Take a Gamble on the U.S. Supreme Court?

The U.S. Supreme Court agrees to consider just five percent of the cases before it. Therefore, Gov. Christie faces long odds if he elects to ask the justices to consider his lawsuit over New Jersey’s sports gambling law.

Nonetheless, Gov. Christie has proven that he is not one to shy away from a challenge. The Department of Justice, along with NBA, MLB, NHL, NFL, and NCAA, have all challenged the state’s efforts to implement a New Jersey law authorizing sports betting. They argue that the law violates the federal Professional and Amateur Sports Protection Act (PASPA), which expressly prohibits U.S. states (other than Nevada, Oregon, Montana and Delaware) from authorizing sports wagering.

The state of New Jersey argues that PASPA is unconstitutional and that the power to regulate gambling, as well as reap its proceeds, should rest with the states. However, so far, Gov. Christie and the state of New Jersey have come out on the losing side of the New Jersey sports betting lawsuit.

In March, a federal judge issued an injunction preventing the sports gaming law from taking effect, ruling that Congress was acting well within its powers when it determined “that all such sports gambling is harmful.”

Most recently, the Court of Appeals for the Third Circuit also rejected the state’s arguments that the PASPA violates the Tenth Amendment by forcing them to outlaw sports gambling. “[It’s] hard to see how Congress can ‘commandeer’ a state, or how it can be found to regulate how a state regulates, if it does not require it to do anything at all,” the majority concluded.

New Jersey’s petition for a rehearing before the full Third Circuit was subsequently denied, leaving the country’s highest court as the only remaining option. As the Governor himself remarked, “Pretty much, a federal question ends at the United States Supreme Court.”

While the line between state and federal regulation is an age-old question with its roots in the drafting of our Constitution, it is unclear whether New Jersey will be able to find support among the Supreme Court justices. One possible ally is Justice Ruth Bader Ginsburg who mentioned the statute in a dissent to the Court’s controversial Voting Rights Act decision earlier this year. She cited the PASPA as an example when highlighting that “federal statutes that treat states disparately are hardly novelties.”

The state has until February to file a petition with the U.S. Supreme Court. If unsuccessful, Gov. Christie will have to turn his efforts back to boosting revenues through online gaming, which is not the worst consolation prize.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Will Gov. Christie Take a Gamble on the U.S. Supreme Court?