1/ If you who enjoy making the occasional sports investment, err wager, follow the Supreme Court action with @DustinGouker @LSPReport. Now some quick handicapping thoughts for today's argument.https://twitter.com/dustingouker/status/937647922535124994 …
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7/ Prop bet: Liberal justice will ask: "PASPA doesn't affirmatively order or require the state to do anything, right?"
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8/ Prop bet: Justice Breyer will ask a long, convoluted hypothetical question about recreational marijuana that will confuse everyone, including himself.
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9/ OK, now let's count votes. Easy ones are the liberal justices. Justices Ginsburg and Breyer are on record as not thinking much of the "commandeering" doctrine. Justice Sotomayor likely in same camp.
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10/ For conservatives, Justice Thomas strong supporter of states' rights and commandeering doctrine. Justice Gorsuch likely in same camp.
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11/ Justice Alito is another conservative NJ needs to win, but he might have concerns about impact of ruling on issues like recreational marijuana and sanctuary cities.
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12/ Justice Kagan is a liberal who would generally support broad Congressional power, but might have similar concerns about impact of ruling on other issues where states are leading progressive causes.
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13/ Justice Kennedy is strong supporter of states' rights and commandeering doctrine, but PASPA is not a straight-forward example of commandeering. Peg him as "leaning state".
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14/ Chief Justice Roberts is conservative, but in a more traditional vein and less libertarian, with more deference to Congress. Rate him a toss-up.
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15/ Sports betting advocates likely need a sweep of Roberts, Kennedy, & Alito to win. So watch their questions closely to see what concerns they might have and what resolutions they might be pitching.
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16/ One potential resolution would be for the Court to find PASPA ban on state operation of sports betting unconstitutional, but leave intact the ban on private actors (e.g., casinos).
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17/ Under this scenario, NJ couldn't funnel sports betting to designated casinos, but would have to set up its own state-run sports betting shop (which DE currently does via its lottery).
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18/ The sleeper resolution is the "equal sovereignty" argument--Why can NV have nice things like sports betting, but NJ can't?
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19/ The parties have focused on commandeering, but amicus briefs raised the equal sovereignty issue. It would give the Court a way to avoid the commandeering issue, and let NJ have state-regulated sports betting in casinos, a la NV.
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20/ If the justices show interest in the equal sovereignty argument, New Jersey's in-game odds go way up.
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21/ So, key things to watch for in argument: * Concerns about recreational marijuana * Skepticism about "limited repeal" funneling sports betting to casinos * Interest in equal sovereignty
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22/ As for key players, Ted Olson for NJ is a SCOTUS Hall-of-Famer, but Paul Clement for the leagues is possibly the best modern SCOTUS advocate. This is Aaron Rodgers v. Tom Brady level lawyering.
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23/ Also, Clement is a respected conservative. He knows how to frame arguments for the conservative judges and has credibility with them. So, slight edge to leagues.
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24/ IMHO, the leagues are a slight favorite to win if it's a commandeering case. NJ is slight favorite if equal sovereignty gets traction.
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25/ Anyway, it's exciting for sports betting to have a real shot at SCOTUS. Enjoy the show, and check back with
@DustinGouker in a few hours for the game highlights.Show this thread -
26/ And follow
@McCannSportsLaw and@SportsLawProf for detailed legal analysis in the post-game show brought to you by the Las Vegas Raiders.Show this thread
End of conversation
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