Four years after making perhaps the most significant legal ruling in the history of the United States' gambling industry, the U.S. Supreme Court is mired in a controversy threatening its credibility.
In a 6-3 decision on May 14, 2018, the Supreme Court overturned the federal statute known as the Professional and Amateur Sports Protection Act (PASPA), which prohibited states outside Nevada from legalizing and regulating sports betting.
The decision continues to transform the gambling industry as 29 states and the nation’s capital, Washington, D.C., have joined Nevada in an almost frantic sports-betting gold rush.
Having legalized wagers on sports events in 1949, Nevada was the only state to escape the reach of PASPA, which President George H.W. Bush signed into law on October 28, 1992.
“Obviously, the decision was a game-changer,” said Bob Jarvis, a gaming law professor at Shephard Broad College of Law in Davie, Florida.
“While I think we eventually would have gotten to widespread legalized sports betting — the public clearly wants it and states and teams are always looking for new revenue — the Supreme Court moved up the timeline by decades,” Jarvis said.
As the pandemic ebbs, the number of states accepting sports wagers is surging.
Nine states opened sportsbooks in the last year, the highest ever since the Supreme Court’s decision in 2018.
In the previous year, despite the ravages of the COVID-19 pandemic, five states entered the sports-betting market.
Seven states and the District of Columbia began taking wagers in the second year, and eight states joined Nevada in the first year.
In the future, Jarvis said he sees an “evolving patchwork of regulation as more states jump into the mix.”
“Florida is a given and Texas seems likely,” he said.
Meanwhile, Supreme Court Justice Samuel Alito, who wrote the sports-betting decision and read it from the bench, is at center stage once again in a raging debate over abortion.
Alito wrote a draft opinion overturning another precedent, the 1973 Supreme Court decision of Roe v Wade, which declared the U.S. Constitution protects a pregnant woman’s choice to have an abortion.
Like sports betting, the abortion case is a debate about whether states should regulate instead of the federal government.
But the abortion debate is much more intense, with protestors even picketing Alito’s house, prompting the U.S. Senate to unanimously pass legislation this week to provide security for the families of all nine Supreme Court justices.
John Roberts, the chief justice of the Supreme Court, has ordered an investigation into the leak, which is a sign of increasing dissension between the court’s conservative and liberal justices.
The carefully cultivated image of the Supreme Court as the least political and most reliable of the three branches (the other two being legislative and executive, including the President) of the U.S. government is fading.
“I think the leak itself just reaffirms people’s view that the court is subject to lots of infighting and maneuvering,” said Laurence Tribe, a former professor at Harvard Law School.
Doubts also are growing about the potential of sports betting to generate more than just marginal profits for the gambling industry.
The Atlantic, a highly influential political and foreign affairs magazine, has published a series of articles sharply critical of sports betting, even going so far as to call it “a moral disaster” in a story on Monday (May 9).
Nevertheless, the Supreme Court seems to be more empathetic than ever with the gambling industry.
Supreme Court Justice Anthony Kennedy, a conservative who voted to overturn the sports-betting ban in PASPA, retired later that year and has been replaced by Brett Kavanaugh, another conservative.
Ruth Bader Ginsburg, a liberal justice who voted against overturning the sports-betting ban, died in 2020 and has been replaced by conservative Amy Coney Barrett.
“I think both (Kavanaugh and Barrett) would have voted to overturn PASPA,” Jarvis said.
“At its heart, [the rejection of PASPA] was a states’ rights decision, something both Kavanaugh and Barrett support.”