As discussed here, the en banc Third Circuit was to hear oral argument in this case today, and it did so this morning. The audio of that oral argument, which ran for about 70 minutes, is available here. Among the central subjects of discussion were the somewhat ephemeral distinction between repealing a prohibition on sports gambling and authorizing such gambling, the Tenth Amendment, and whether Congress was commanding, or could command, New Jersey what to do about sports gambling. There was also some skeptical questioning about whether a sports betting venue could be operated at Garden State Racetrack, which no longer exists as a racetrack but is still “grandfathered” into the statute.
There was a moment of levity when one counsel stated that if the Sports Gambling Act were upheld, that would not mean that this would become “the Wild West.” One of the judges quickly asked whether it would be “the Wild East,” drawing laughter. The response, from counsel for racetracks, was that the sports betting industry could regulate itself, as some other professions do. That attorney cited the legal profession as one that self-regulates. None of the judges challenged that statement, but it seems somewhat questionable. The New Jersey Constitution assigns to the Supreme Court of New Jersey plenary responsibility for regulating the legal profession. That makes the legal profession anything but self-regulating, unless it is considered “self-regulating” because the members of the Court are attorneys themselves.
This argument featured some well-known appellate specialists, and a number of the judges were active in the colloquy. The stakes are high in this case, the panel was split 2-1, and the precedents are not easy to apply. Overall, it appeared (from the audio only) that New Jersey has an uphill battle after this argument. But that remains to be seen. The argument is well worth listening to.