Poker
Player
Gambling
and the Law®:
John
Roberts, The Supreme Court, And Me
It was the New York Times calling, wanting to know what I thought of
the nomination of John Roberts to the Supreme Court. My first thought was, “Yes!! I’ve made it!”
Then reality struck me, “Wait a
minute.” So I asked, “Why ask me?”
The reporter replied, “You went to
school with him for three years.”
I checked the 1979
I’d like to say that John and I were
great pals. But we didn’t hang out
together. He spent his time at the Law
Review office. I spent mine playing
poker.
Although we never worked on a case
together, John Roberts, now Chief Justice of the
In 1999, the U.S. Supreme Court
heard one of the most important cases involving legal gambling in years. Federal law prohibits “lotteries” from
advertising on radio or television. The
Federal Communications Commission was punishing any broadcaster who aired a
casino commercial, even for poker rooms.
I wrote about this law in my 1986
book, Gambling and the Law. I pointed out that casinos are not
lotteries. But more importantly, these
are state licensed businesses. I
predicted that the Supreme Court would declare that this law violated the
Constitution’s First Amendment protection of Free Speech.
The Ninth Circuit Court of Appeals
had ruled that the law was unconstitutional when it was applied to prevent
Roberts, then a lawyer in private
practice, was hired by the country’s major casino lobbying group, the American
Gaming Association, to bring the argument to the high Court. He researched and wrote the brief as the
counsel of record for the AGA.
The Supreme Court accepted the
position spelled out by Roberts and me, declaring that it made no sense to
allow tribal casinos to advertise, when privately owned casinos in the same
state could not.
Interestingly, President Bush’s
other nominee to the Supreme Court, Harriet Miers, also has had ties with the
business of legal gambling. For five
years she was Chair of the Texas Lottery Commission, which also regulates
charity bingo. Transcripts of the
Commission’s meetings during her final year are available online. They show a person who was deeply involved
with the operation of what was, at that time, the seventh largest lottery in
the world.
What does this mean for legal
gaming? Probably quite a bit.
Gambling is such big business that
it is fairly regularly involved with major cases. A very few have made it to the nation’s
highest court: A couple involved tax issues, another dealt with whether New
Jersey could regulate unions already covered by federal law, and the most
important one declared that part of the Indian Gaming Regulatory Act was
unconstitutional. But that decision
shows how little the justices knew or cared about legal gaming.
In the Seminole opinion, the Court declared that a tribe could not
sue a state unless the state consented.
But the Court expressly refused to tell tribes or the states what to do
if a state did not consent.
Other cases have been vigorously
fought over the question of whether tribes can put in slot-like machines that
are technically bingo. Even though the
tribes, federal Department of Justice and many states asked the Supreme Court
to decide the issue, Chief Justice Rehnquist refused. He did not want to go down in history as the
judge who decided “what is bingo.”
Chief Justice Roberts is a different
man. He understands that legal gaming is
an enormously large and legal business.
He would also be more interested in the complicated issues surrounding
activities like Internet poker.
And if Miers is confirmed, he will
be joined by another justice who has shown she is not afraid of making
decisions about legal gambling.
END
© Copyright 2005. Professor I Nelson Rose is recognized as one of the world’s leading authorities on gambling law. His latest books, Gaming Law: Cases and Materials and Internet Gaming Law, are available through his website, www.GamblingAndTheLaw.com.