The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What Was The Most Consequential Supreme Court Decision Over The Past Five Years?
No, it was not Dobbs or Bruen.
For the past few years, I have watched with some apprehension the explosion of legalized gambling in the United States. Casinos have sprouted up in places that did not previously allow gambling. And online sports gambling has proliferated, such that almost every commercial break during the Super Bowl plugged a betting app. Much of this shift can be traced back to a single Supreme Court decision: Murphy v. NCAA (2018). At the time, I thought this federalism case was not a difficult call: Congress cannot prohibit a state from legalizing sports betting. The vote was 7-2. Justice Ginsburg dissented on fairly narrow grounds concerning severability. The consequences, however, extended far beyond the Garden State.
Charles Lane's column in the Washington Post summed up my thinking:
A few months ago, I was on a flight to Las Vegas for a talk at UNLV. The person sitting next to me worked for the marketing department of one of the large casino conglomerates. He made no effort to conceal what was on his screen, and I availed myself of the opportunity to read his presentation. (Never do any work on a plane unless you are willing to have other people see it.) The casino was trying to calculate the correct level of "enticement" needed to hook a person on the app. In other words, how many free "credits" would a person receive before he became a "loyal" member. I'm sure similar conversations were held back in the day at tobacco companies. At least in the past, people had to make a physical trip to a casino. Now, super-addictive apps can hook a person, and deplete his bank account anywhere. Lives will be ruined with a few swipes.
I think the societal effects of Murphy will dwarf the impact of Dobbs and Bruen. Without question the number of abortions has decreased, but not nearly as much as some advocates feared. And, on balance, I suspect that gun laws nationwide will not look much different in 5 years than they do now. But Murphy, a single decision led to a complete shift in the American economy. Don't tell Justice Gorsuch, but Indian tribes, which have come to rely on exclusive gaming facilities, may be the hardest hit. Plus, throw in Justice Kavanaugh's concurrence in NCAA v. Alston, and college athletics have been turned upside down by name-image-likeness deals. It's often the decisions that fly under the radar that are the most consequential.
