Legal Sports

Supreme Court Touts ‘Point Spread’ In Recent Opinion

The more states that legalize sports betting, the more mainstream the industry becomes. People previously unfamiliar with betting start hearing about it from friends, sports broadcasts inevitably are incorporating such discussion into game coverage, and new TV shows and even channels are popping up as legal, regulated sports betting no longer is confined to Nevada.

Along came the U.S. Supreme Court last week to enter into the mix.

There are no fewer than three gambling references in the majority and dissenting opinions in a landmark gerrymandering case. (Perhaps we should give credit to all that research the justices did before overturning a 26-year-old federal law in May 2018, opening the door for the spread of sports betting across the country.)

Roberts makes his “point”

The politics of the case are beyond the scope of this website, but nearly all of the facts are undisputed. Lower courts had struck down brazen gerrymandering by Republicans across North Carolina and by Democrats who bounced hundreds of thousands of voters in and out of a specific Maryland district.

Chief Justice John Roberts, writing for the 5-4 majority along with the four other conservatives, noted that “These cases involve blatant examples of partisanship driving districting decisions.”

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So the only question, Roberts asks, is “How much is too much?” — that is, can the federal courts step if the gerrymandering is egregious enough?

In the North Carolina case, the District Court tried to set up a standard requiring objectors to a redistricting plan to demonstrate that the change in the balance of power openly sought by a political party “is likely to persist” in future elections to such an extent that the elected representative will be comfortable ignoring the concerns of those in the minority party in their district.

That is where Roberts found the Court had gotten too speculative.

“The test adopted by the … court requires a far more nuanced prediction than simply who would prevail in future political contests,” Roberts wrote. “Judges must forecast with unspecified certainty whether a prospective winner will have a margin of victory sufficient to permit him to ignore the supporters of his defeated opponent (whoever that may turn out to be). Judges not only have to pick the winner — they have to beat the point spread.”

Predictions and precedent

Roberts added a point reminiscent of how difficult it is to be a winner in sports betting: The unexpected just keeps happening. In the 1980s, Roberts pointed out, in the two gerrymandering cases that reached the Supreme Court (and were rejected), “the predictions of durability [of dominance by the gerrymandering party] proved to be dramatically wrong.” In both Indiana and Pennsylvania, the gerrymanderers lost control within just two years.

But Justice Elena Kagan, joined by the Court’s three other liberals in a dissenting opinion, in her disagreement reminded me of the daily fantasy sports revolution of only about five years ago. The games were pitched to the public as if anyone with a series of good hunches stood a fair chance of winning. But the reality behind the scenes was that sophisticated gamblers using advanced algorithms, with access to thousands of contests on a given day, led to a scenario of 1% of DFS players winning more than 90% of the money.

Similarly, Kagan wrote that there is no comparison between a primitive 1980s gerrymandering scheme and what is now possible with modern technology — with redistricting, just as with DFS — to game the system far more efficiently.

More betting references

The lower courts, Kagan wrote, “did not bet America’s future — as today the majority does — on the idea that maps constructed with so much expertise and care to make electoral outcomes impervious to voting would somehow or other come apart.”

Kagan’s other gambling reference came based on the assertion that states can handle redistricting matters themselves, whether through the legislature or, in nearly half the states, via a referendum that would take the power away from self-preserving lawmakers.

“Even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail,” Kagan wrote. “Look at Missouri. There, the majority touts a voter-approved proposal to turn districting over to a state demographer. But before the demographer had drawn a single line, members of the state legislature had introduced a bill [earlier this year] to start undoing the change. I’d put better odds on that bill’s passage than on all the congressional proposals the majority cites.”

These Court Opinions are carefully written and edited, over and over, by brilliant law clerks, a few of whom are liable to wind up on the Supreme Court bench themselves a few decades down the road. Every sentence — every word, even — is carefully considered.

Clearly, Roberts and his staff concluded that “cover the point spread” is a broadly understood term for readers of the opinion, regardless of their level of interest in sports or gambling.

With more states headed toward legalizing sports betting, the genie that is normalization of sports betting is never going back into the bottle.

Photo by David Smith /

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