The practice of sports betting has been left to the states to decide in regards to how they both legislate and regulate it. Whenever you see the phrase “left to the states to decide,” you can bet the Supreme Court of the United States was involved in that decision. In fact, the court plays heavily into the history of sports betting in America. Where it gets murky is whether or not the Supreme Court of the United States actually legalized the practice.
In short, no.
Did the Supreme Court Legalize Sports Betting?
The United States Supreme Court does not have the power or the authority to “legalize” anything, sports betting or otherwise. That is not their function or role in the federal government. As the third branch of government, the Supreme Court’s role, ever since the case of Marbury vs. Madison, has largely been to determine whether or not legislation or action taken by domestic governments violates the United States Constitution.
This is known as judicial review. While this is not actually spelled out in the Constitution as a duty of the court, in the aforementioned court case of 1803, it nonetheless established this as its core function. So to answer the question, technically, no, the Supreme Court did not legalize sports betting. What it did do, was remove a federal obstacle to make a pathway to legalization much easier.
What Was the Professional and Amateur Sports Protection Act?
A law known as the Professional and Amateur Sports Protection Act of 1992 made sports betting in America illegal in most states, except, of course, Nevada. This, of course, led to black market betting and the explosion of “bookies,” which had an estimated handle annually of $150 billion.
Anytime something becomes officially outlawed, rest assured a black market for it will emerge. Sports betting illegally thrived for decades following this. Everyone’s dad seemingly had a bookie they were betting the Super Bowl coin toss result with.
Fast forward to 2007 when former NBA official Tim Donaghy and the Union City New Jersey mayor both get indicted and convicted of felony sports betting. This put sports betting squarely in the national spotlight.
So, in 2011, New Jersey Governor Chris Christie decided to push the envelope and signed legislation to allow sports betting in New Jersey at racetracks and casinos. In 2011, and again in 2014, Christie lost in federal court.
Opposition to Sports Betting Begins To Fade
When Christie tried again in October 2014, and he was sued again by the four major sports leagues and the NCAA, something was different. Opposition to sports betting was beginning to erode.
That November, NBA Commissioner Adam Silver called on Congress to provide a federal framework for legal sports betting. In February 2015, MLB Commissioner Rob Manfred said on Outside the Lines that sports betting should be reconsidered. In 2016, the NHL and NFL each placed a franchise in Las Vegas — the Golden Knights and the Raiders.
Christie petitions the court to hear the case based on Constitutional grounds, saying the 1992 law violates the 10th amendment’s “anti-commandeering” principle. The court decided to hear New Jersey’s appeal.
How Did the ‘Anti-Commandeering’ Principle Help Sports Betting?
The “anti-commandeering” principle in the 10th Amendment bars Congress from ordering states to participate in a federal regulatory scheme. The arguing lawyer, Theodore Olson, for the state of New Jersey, put it this way to the court when he said in his briefs:
“The anti-commandeering principle is both simple and vital: to preserve the separate sovereignty of states — and the benefits that sovereignty provides within our federal system — Congress is limited to exercising its legislative authority directly over individuals rather than over States.”
On May 14, 2018, the Supreme Court agreed and rendered a decision to strike down PASPA, paving the way for legal sports betting to thrive. This decision left the ultimate regulation of sports betting to the states. As such, each state has handled this differently. Not every state has legalized the practice yet, and some who have are still more restrictive than others.
How Many States Have Legalized Sports Betting?
Thirty-six states plus the District of Columbia have legal sports betting. An additional eight states have legislation pending to make sports betting legal in those states. Five states have no legislation pending, and it appears sports betting won’t be legal there anytime soon. One state, Georgia, had legislation defeated, making the likelihood of them joining the ranks bleak at best.