Is The U.S. Supreme Court Preparing For Another Sports-Betting Case?

October 23, 2023
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As the tribal and commercial gambling industries wait for U.S. Supreme Court Chief Justice John Roberts to decide if sports betting in Florida should remain on hiatus, questions persist about why Roberts decided to get involved in a case that has not yet been appealed to his court.
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As the tribal and commercial gambling industries wait for U.S. Supreme Court Chief Justice John Roberts to decide if sports betting in Florida should remain on hiatus, questions persist about why Roberts decided to get involved in a case that has not yet been appealed to his court.

Roberts extended the almost two-year pause on sports betting in the Sunshine State on October 12 when he ordered the U.S. Department of the Interior to respond to a request from West Flagler Associates of Miami for a stay, or a delay, on an appellate court ruling to reinstate a landmark 2021 tribal gaming compact between Florida and the Seminole Tribe.

Moreover, the chief justice issued his order to the Interior Department on the same day West Flagler Associates requested the stay.

U.S. Solicitor General Elizabeth Prelogar responded to Roberts’ order on Wednesday (October 18) and sources say the chief justice is likely to deny the stay request by the end of the month. 

But legal experts and tribal and commercial casino executives are scratching their heads trying to figure out why Roberts did not wait for West Flagler Associates to formally appeal a June 30 decision in the U.S. Circuit Court of Appeals in Washington, D.C. which would allow sports betting to resume in Florida.

Although West Flagler Associates has said it will appeal the decision to the Supreme Court, no appeal has been filed.

“Usually, the Supreme Court does not get involved in a case until it winds its way through the lower courts and the losing party files a petition for certiorari,” said a tribal gaming attorney who requested anonymity.

A lawsuit in Florida’s Supreme Court by West Flagler Associates also has not yet been resolved. 

The lawsuit seeks to void the gambling compact negotiated in 2021 by Florida Governor Ron DeSantis and the Seminole Tribe to allow retail and online sports wagering, as well as craps and roulette in tribal casinos.

Roberts’ intervention is also puzzling given his record of supporting the gambling industry.

As an attorney in private practice, Roberts worked at the same blue-chip Washington, D.C. law firm of Hogan & Hartson, now Hogan Lovells, as Frank Fahrenkopf before Fahrenkopf founded the American Gaming Association (AGA) in 1995.

Roberts even represented the AGA in 1999 when he submitted a brief to the Supreme Court arguing the casino industry should be allowed to advertise in states where casinos are legal.

In a unanimous decision, the Supreme Court struck down the ban on gambling advertising in Greater New Orleans Broadcasting Association, Inc., et al v. United States, et al.

Six years later, Roberts joined the U.S. Supreme Court as chief justice after being nominated by President George W. Bush.

On May 14, 2018, Roberts voted with the majority in a historic 6-3 decision that lifted a federal ban on sports betting and overturned the Professional and Amateur Sports Protection Act (PASPA) of 1992.

Four of the five Supreme Court justices who joined Roberts in the ruling to allow states to legalize and regulate sports betting remain on the court.

Those other four are Samuel Alito (who wrote the opinion), Neil Gorsuch, Elena Kagan and Clarence Thomas.

Former Supreme Court Justice Anthony Kennedy, who also voted against the sports-betting ban, retired less than three months after the ruling.

The only remaining Supreme Court Justice who voted in favor of maintaining the sports-betting ban and PASPA is Sonia Sotomayor.

The other two dissenting justices were Ruth Bader Ginsburg, who died in 2020, and Stephen Breyer, who retired last year.

Although he was not on the Supreme Court in 2018 when the landmark sports-betting decision was made, Justice Brett Kavanaugh wrote an opinion in July 2013 to allow gamblers visiting the United States to deduct their losses before paying taxes on their winnings. Kavanaugh wrote the opinion while he was a judge on the U.S. Circuit Court of Appeals in Washington, D.C.

Justice Amy Coney Barrett, who joined the Supreme Court in 2020, sided with the majority in a 5-4 decision last year allowing the Tigua Indians of El Paso, Texas to continue electric bingo operations.

Barrett’s vote in the Tigua case pleasantly surprised the tribal gaming community because she worked as a law clerk for Supreme Court Justice Antonin Scalia, a staunch opponent of Indian gaming who died in 2016.

The newest Supreme Court justice, Ketanji Brown Jackson, does not yet have a record on gambling cases. 

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