Ordinarily, by the night before an oral argument in an appellate court, all of the written material that the judges will consider has long since been submitted. But, since late this afternoon, there has been a flurry of what are known as Rule 28(j) letters submitted to the United States Court of Appeals for the Third Circuit in connection with tomorrow's oral arguments in NCAA v. Christie, dealing with the constitutionality of PASPA and whether New Jersey will be able to offer sports betting in casinos and at racetracks. The name of the letter comes from Federal Rule of Appellate Procedure 28(j), which provides that if new authorities come to a party's attention before an appeal is decided but after a brief has been filed, the party may notify the Court of that authority in a letter not to exceed 350 words.
This afternoon, the State filed a Rule 28(j) letter, alerting the Court to the Supreme Court's decision this morning in Shelby County v. Holder, the case that declared certain portions of the federal Voting Rights Act unconstitional. The state argued that Shelby County establishes that the "equal sovereignty" doctrine - the principle that the states are to be treated equally from a federalism standpoint - applies in a more broad context than just in cases where, historically, new states were admitted to the Union. Interestingly, in dissent, Justice Ginsburg specifically referred to PASPA as an example of a statute that treats states differently, and asked the rhetorical question: "Do such provisions remain safe given the Court's expansion of equal sovereignty's sway?"
Both the US Attorney and the professional sports leagues promptly responded to the State's letter with letters of their own. The US Attorney argues that the State's reading of Shelby County is too broad and that there are fundamental differences between a statute that prohibits states from regulating sports betting and a statute that governs preclearance of changes to voting methods. Similarly, the Leagues emphasize that PASPA was enacted pursuant to Congress' power to regulate interstate commerce, not its power under the Fifteenth Amendment.
The last paragraph of the Leagues' letter is quite interesting. The Leagues say that, assuming (while disagreeing) that the State's argument has merit and that Congress cannot discriminate among the states based on equal sovereignty in the sports betting context, the appropriate remedy would be "to invalidate PASPA's preferences" not "PASPA's general prohibition." Thus, the Leagues seem to suggest that if equal sovereignty has merit, the appropriate remedy is to strike the portions of PASPA that allow four states to conduct sports wagering. If the Court were to accept that proposition, it would clearly lead to a flurry of legal challenges and activities, given that Nevada's ability to offer sports wagering could be put in jeopardy.
It remains to be seen what impact - if any - these last minute filings will have, either on oral argument tomorrow or on the Court's ultimate decision, but they are another interesting twist in what has already been an interesting case.