Welcome to the new Supreme Court Brief. You’ll notice this email looks different and that it’s coming to you in the morning instead of the afternoon. Our goal with this new format is to keep you in-the-know on all things #SCOTUS every morning the court is in session. We’ll share what we’re watching, dissect recent news developments, analyze the court’s most important cases and explore the quirks, personalities and traditions of the Supreme Court and its practitioners.
We’re your hosts Tony Mauro and Marcia Coyle. Combining our careers, we’ve spent 67 years covering, studying and obsessing over the U.S. Supreme Court. We’d like this to be a two-way conversation, so reach out to us at email@example.com or firstname.lastname@example.org. We welcome your views on what the court is doing and not doing, tips about interesting petitions, briefs, books and articles, and predictions about forthcoming opinions, vacancies, nominations—anything on the court’s horizon.
We picked a newsy week to launch; the court is hearing arguments in the sports betting case Christie v. National Collegiate Athletic Association today, and the marquee religious freedom/ sexual orientation discrimination case Masterpiece Cakeshop v. Colorado Civil Rights Commission tomorrow, plus other interesting cases and developments we’ll highlight. Here we go …
Clash of the Titans
The stakes are high in the Christie case, and we mean that literally.
The American Gaming Association estimates that Americans bet $150 billion on sports annually, and only 3 percent of those bets are legal. If the Supreme Court strikes down the federal law that prohibits sports betting in most places, the industry will only grow, with sports betting spreading fast among revenue-thirsty states.
With so much at stake, it’s no surprise that the parties have signed up top-tier advocates from among the ranks of former U.S. solicitors general—a meeting of two friends who have a total of more than 150 Supreme Court oral arguments under their belts.
Representing New Jersey Governor Chris Christie in his effort to end the federal ban on most sports betting is Gibson, Dunn & Crutcher partner Theodore Olson, arguing his 63rd case before the high court.
On the other side, representing five sports leagues that oppose widespread sports gambling – the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball—is Paul Clement of Kirkland & Ellis, arguing his 90th Supreme Court case—yes, 90.
It will be the first time Clement and Olson have squared off against each other at the high court. “We have argued against each other in the lower courts, but this will be the first in SCOTUS,” said Clement, adding that “We argued on the same side in McConnell v. FEC,” the 2003 campaign finance case.
That was only natural, because Clement was Olson’s deputy when he served as SG from 2001 to 2004. When Olson left the office, Justice Antonin Scalia said later, Clement was the court’s “sentimental favorite” to replace him. Clement, who had clerked for Scalia, was SG from 2005 to 2008.
“Paul is superb—a great mind and a very, very skilled advocate, a formidable adversary. A pleasure to watch and listen to him,” Olson told us.
Olson’s argument style is blunt and direct. Clement’s is both quick and scholarly. He never fails to impress by rattling off citations and pages from briefs without any notes in front of him – though we have noticed recently that Tom Goldstein of Goldstein & Russell is arguing without notes too.
Not to be forgotten is the third lawyer who will argue in the Christie case: Jeffrey Wall, the able deputy solicitor general and former Sullivan & Cromwell partner who pretty much ran the office from March to September while Noel Francisco awaited confirmation as SG. Along with Clement, Wall will defend the Professional and Amateur Sports Protection Act, the statute that is under fire, arguing that the does not “commandeer” states to do anything in violation of the Tenth Amendment, but merely prohibits states from adopting laws that conflict with federal policy. Whether or not the court buys that distinction will be a key to the outcome.
The dynamics of the case make for interesting bedfellows, as Bloomberg’s Greg Stohr notes: “All it took to bring Donald Trump and the National Football League together was New Jersey Governor Chris Christie and his Supreme Court bid to legalize sports gambling. The NFL, a target of the president’s Twitter ire over national anthem protests, is banding together with the administration to fight the outgoing governor.”
One bad omen for those who want the law upheld is that, apart from the government brief, only one other amicus brief was filed on that side of the case, on behalf of Stop Predatory Gambling and religious and other groups “united in their opposition to the exploitation of American communities through commercial gambling.” Interestingly, the counsel of record on the brief is Deepak Gupta of Gupta Wessler, who usually sues the Trump administration rather than defending its positions.
Betting on sports betting: Sports Handle, a sports betting web site, not surprisingly, is laying out the odds for how today’s arguments will go, including: will Justice Clarence Thomas speak? (Odds are against it.) And will Justice Samuel Alito Jr. mention his beloved Philadelphia Phillies? (Also unlikely.)
ALSO TODAY: The court will pivot from sports betting to sovereign immunity and terrorism as it hears arguments in Rubin v. Islamic Republic of Iran. Only eight justices will participate: Justice Elena Kagan is recused, likely because of earlier involvement in the case as solicitor general....