The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Politics

What Was The Most Consequential Supreme Court Decision Over The Past Five Years?

No, it was not Dobbs or Bruen.

|The Volokh Conspiracy |


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:

When historians evaluate the Supreme Court's impact on early 21st-century America, they will no doubt focus on the 2015 decision legalizing same-sex marriage or the overthrow of Roe v. Wade last year.

As Sunday's Super Bowl reminds us, however, the most underrated Supreme Court decision of the past decade might be Murphy v.National Collegiate Athletic Association. In that 2018 ruling, the justices declared unconstitutional a 1992 federal law that barred 46 states from repealing their then-existing bans on sports betting.

Now, 36 states and D.C. permit bets on the NFL, MLB, NBA — you name it. Leagues that once shunned betting as a threat to their integrity cheerfully accept legal sportsbooks as official "partners."

Whether or not you bet, there's no escape from advertising by companies such as FanDuel and DraftKings. With bewildering speed, a language once intelligible only to Las Vegas habitues — "parlay," "over-under" — has gone mainstream.

This year's Super Bowl was the first played in a state — Arizona — with legal sports gambling. A service that tracks the location of online sports betting transactions found that 100,000 of the 100 million "pings" to sports betting apps that it traced nationwide on Sunday came from State Farm Stadium or nearby, according to the Wall Street Journal. It's not yet known how much people wagered on the contest via legal sportsbooks, but the industry's trade association has estimated $1 billion. . . .

Gambling is known to be addictive because it supplies such a rush. Though integrity of sports was the 1992 law's primary concern, gambling addiction was also a potential harm against which the measure, sponsored by former NBA star Sen. Bill Bradley (D-N.J.), sought to protect.

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.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. Follow him @JoshMBlackman.