Gaming Sector Not Impacted by Breyer Leaving Supreme Court: Law Profs

Posted on: January 29, 2022, 09:23h.

Last updated on: January 29, 2022, 05:09h.

Two leading experts on gambling law predict the upcoming vacancy on the US Supreme Court will not have much of an impact on the casino sector and gaming. The vacancy is because of the recent announcement that Justice Stephen Breyer is stepping down.

Breyer wrote two gambling decisions
Judge Ketani Brown Jackson, pictured above. She is now on the DC Circuit Court and could be nominated to fill a vacancy on the US Supreme Court. (Image: ABC News)

Another liberal is likely to be nominated by President Biden. It is most likely someone who is a Black woman with extensive judicial experience.

Judge Ketani Brown Jackson of the US Court of Appeals for the District of Columbia Circuit is seen as a leading contender. California Supreme Court Justice Leondra Kruger is another leading candidate.

Judge Jackson, like the other six women being considered, has never ruled in a gambling case and has no track record on gambling issues,” Robert Jarvis, a law professor at Florida’s Nova Southeastern University’s Shepard College of Law, told this week when asked about those on the short list.

“It is impossible to say how she, or any of the other candidates, might rule in a future gambling case. And clearly, gambling law is not something that is going to figure into President Biden’s thinking as he decides who he is going to nominate,” Jarvis adds.

Breyer Wrote Two Gambling Decisions

Moreover, the fact that Breyer is leaving means “very little” for the gaming sector, Jarvis said. He points out Breyer authored just two gambling decisions during his 28 years on the Supreme Court. They include Chickasaw Nation v. US in 2001, where it was ruled that the Indian Gaming Regulatory Act (IGRA) did not exempt tribes from federal taxes. There’s also Fitzgerald v. Racing Ass’n of Central Iowa in 2003, where it was governed states can impose different rates of taxation on different forms of gambling.

Both were 9-0 decisions. In short, Justice Breyer has not been a major figure when it comes to gambling issues,” Jarvis said.

Still, he predicts future gambling cases heard by the Supreme Court could involve Indian gambling, since there are still lots of unresolved issues under the IGRA.

One tribal gambling case that is scheduled for oral arguments on Feb. 22 is the Tigua (Ysleta del Sur Pueblo) case. The tribe challenged a 2019 decision by the 5th Circuit Court of Appeals. That ruling determines that the bingo-style games they were offering at their gaming facility in El Paso, Texas were illegal.

A positive decision in the Supreme Court should strengthen the claims of tribes in other states that find themselves in a similar legal predicament, predicted last year.

Another potential case to reach the Supreme Court is West Flagler Associates v. Haland. Last November, the DC District Court struck down the Florida-Seminole gambling compact, Jarvis said.

He adds that two other areas likely to generate possible cases before the Supreme Court are internet gambling, especially the Unlawful Internet Gambling Enforcement Act of 2006. That’s particularly if Congress repeals or amends the law and sports betting. Many state laws recently authorized sports gambling.

“There is no real itch on the Court to hear gambling cases,” Jarvis said. “So, I expect that the number of gambling cases that are granted review by the Court will continue to be very small.”

Supreme Court Remains Split

Anthony Cabot, Distinguished Fellow of Gaming Law at UNLV’s Boyd School of Law, further told that the Supreme Court is hyper-partisan.

“Decisions come down to the current 6-3 split between conservative and liberals,” Cabot said. “As long as this split remains, the consequences for the gaming industry are constant.”

“The conservatives on the Supreme Court are much more likely to invalidate federal laws/actions that attempt to regulate or prohibit gaming in favor of states’ rights and oversight,” Cabot added. “This was the reason for the Supreme Court invalidating the ban on sports wagering and gaming advertising.”

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