As expected, New Jersey has asked the Supreme Court of the United States to hear the case of NCAA v. Christie, and has asked the Supreme Court to vacate the injunction currently preventing New Jersey casinos and racetracks from offering sports betting.
Procedurally, in order for the Supreme Court to "grant cert" and hear the case, four of the nine justices must vote to hear the case. Before the Court considers the petition, however, all of the parties below - the Leagues and the Department of Justice - have the opportunity to file a brief in opposition. (Notably, the Department of Justice will now be represented by the Solicitor General, as the Solicitor General represents the interests of the United States in all proceedings before the Supreme Court.) Parties wishing to oppose the petition have thirty days from the date of docketing to file their opposition; thus, any opposition is due on March 17, 2014.
Once the petition is fully briefed, it will be placed on a conference agenda at the Court. Court conferences are conducted in private; once the Court has made its decision, it will generally issue only a one-sentence order either granting or denying the petition. The Court will hold conferences on April 4 and April 18; it has not yet scheduled its May and June conferences. The Court then recesses until October. Even if the petition is granted during this Term, it will not be argued until the fall at the earliest.
Supreme Court Rule 10 states the "character of the reasons the Court considers" in deciding whether to grant a petition. Those considerations include: (a) a split among the circuit court of appeals on an important matter, or a decision by a court that is "so far departed from the accepted and usual course of judicial proceedings" as to require the Court's supervisory power to be used; (b) a conflict between a state supreme court's decision on a question of federal law that conflicts with another court's decision; or (c) a decision on an important question of federal law that has not been but should be settled by the Supreme Court or that has been decided in a way that conflicts with past Supreme Court decisions.
In its petition, New Jersey argues that the Third Circuit's decision conflicts with past Supreme Court decisions governing "anti-commandeering." New Jersey argues that those decisions prohibit Congress from regulating how the states regulate, and that PASPA commandeers the state's regulatory system, requiring it to prohibit sports betting. The state argues that there is no distinction between affirmative commands and negative prohibitions; both infringe on a state's regulatory authority.
The state also argues that PASPA impermissibly discriminates against states (by allowing sports betting in some states and not others) and that doing so conflicts with past Supreme Court decisions.
The state notes that either of these constitutional errors, in and of itself, is worthy of review by the Supreme Court. The state argues that the combination of the two "would be fatal to our federalist system" becuase Congress could do things like provide that only Florida may license the production of orange juice or prohibit Delaware from licensing or authorizing corporations.
We will have coverage here of the opposition briefs, if and when they are filed.