Murphy v. NCAA

In case number 16476, Murphy v.

NCAA and the consolidated case, Justice Alito has the opinion of the court.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Murphy v.

NCAA.

This is a case about sports gambling.

In the early 90s, then President George H.W.

Bush signed a federal law making it illegal to gamble on sports in most states in the U.S.

Participants in everything from fantasy football and March Madness pools to big dollar wagering on games and matches are rejoicing tonight.

The U.S.

Supreme Court has ruled a federal law banning sports gambling in most states is illegal.

But in 2018, the Supreme Court overturned that law.

claiming that it impeded state sovereignty and that states were free to establish their own sports gambling laws.

As you'll hear, the justices did not think it all the way through.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our civil rights to collapse, like the inaugural stage beneath Donald Trump.

I'm Peter.

I'm here with Rhiannon.

Hey, Happy New Year.

And Michael.

Hi, everybody.

Happy New Year.

Now, we are recording this before the inauguration, but I'm predicting that the stage will collapse due to poor planning.

Peter's positing there is a God, and he has a sense, or she, he or she has a sense of humor.

Or they.

This is a very ambitious metaphor for me.

Usually I talk about things that have already happened, but this time I'm willing something to existence.

And if it does happen, they will talk about me like I'm a god.

Now, do you folks have any predictions for the inauguration?

It'll be stupid.

Good one.

That's a good one.

Michael?

No, no predictions.

I don't really watch inaugurations.

I haven't.

Right.

Why would you?

I attended one once in 09.

Yeah.

And that was it.

I was there in 09 as well.

And it was cold and boring.

Exactly.

And I was like, I don't even ever, ever need to see any of these again.

Yeah.

And I have not.

I also predict Elon Musk, Donald Trump Jr.

half handshake, half hug that gets caught on camera and really, really doesn't look normal.

That's my other prediction.

Oh, that's good.

That's good.

Yeah, some weird sitting, some weird standing, for sure.

Yeah.

There will be some viral clips of, yeah, weird poses, but also

somebody, Musk or

one of the Trump kids, looking like they're clearly on drugs.

That'll be something.

For sure.

Sure.

All right.

This is the first fresh episode of 2025.

And today's case, Murphy v.

NCAA.

This is a case from 2018 about gambling, about sports betting.

This is the case that legalized sports betting across the country in function.

And this case is why every commercial that you see during a sports broadcast now is for some godforsaken gambling app.

And every sports commentator has to have a digression about the spread during every game.

And it's why every straight man you know seems slightly poorer than they did in 2019, despite getting two promotions in the interim period.

It's hurting.

It's hurting.

And it's why every time I talk to my friends about sports, they're like, I put $5

on this ridiculous parlay that will never hit.

And if it does hit, I get $45 or something.

Yeah.

But for some reason, that has to be what we talk about now.

No one enjoys sports.

Do you get the screenshots?

Do you just get the screenshots of the parlays?

My friends send screenshots.

When they hit, my friends will send me a screenshot and be like, should have bet more.

It's like, you have a problem.

I get a lot of the screenshots when like the first three or four legs of the parlay have hit.

And it's like, oh, now I really need, you know,

fucking Puka Nakua first TD score in the Sunday night game or something.

And it's like, okay, good luck, dude.

I'm happy for you.

All right.

Back in 1992, Congress passed a law that prohibited states from authorizing or licensing sports betting.

In the 2010s, New Jersey attempted to challenge the law and allow for sports betting in this state.

The major sports leagues themselves sued to stop it, but the Supreme Court, in a 7-2 decision, said that the federal government could not prohibit states from authorizing sports gambling because it impeded on state sovereignty

in a sense.

Yeah.

Yeah.

Yeah.

No, for sure.

Yeah.

States rights paper.

For sure.

You know, we're going to talk about that legal reasoning and state sovereignty and like whether the federal law in question actually does impede on it.

But I think this is one of those cases where like our takeaways are not so much about like straight up brutalizing, mangling the legal reasoning by the Supreme Court, more about like the consequences that followed from a Supreme Court case.

Okay, let's talk about sports betting.

So, like, six or seven years ago, it was illegal in most places in the United States to do sports betting, any kind of sports gambling on live sports.

You could bet on sports, certainly in Las Vegas, the state of Nevada, a handful of other places, but otherwise, this kind of gambling was really mostly illegal.

The professional sports leagues, the NFL, the MLB, the NBA, et cetera, they generally supported that status quo because there's this idea, which I think is inescapable and true, that allowing widespread sports betting, it threatens the integrity of the sport.

It can corrupt the sport.

And in fact, there are really a ton of famous examples in history.

The so-called Black Sox scandal, in which eight players for the Chicago White Sox, this is professional baseball, were accused of intentionally losing the 1919 World Series in exchange for payment from a gambling syndicate.

You You know, Pete Rose in the 80s, this is a MLB player.

And after a more than 20-year-long career in baseball, playing and then as a manager, he was accused of betting on games and then subsequently permanently banned from the sport and the Baseball Hall of Fame.

In the NCAA, this is the college sports league, of course, in 1994, Arizona State basketball team.

There was a point shaving scandal where players were revealed to be getting paid to fix games to, you know, miss their shots.

Tim Donaghy, longtime NBA referee, was caught in a gambling scandal.

You know, he was accused of making calls that would affect the point spread, like give a team a foul so they go to the free throw line, get a couple more points, that kind of thing.

Now, there's also the social ills that come with gambling, not just corrupting our beloved and sacred sports.

There are social ills, and fear that sports gambling would become widespread led to Congress passing PASPA in 1992.

PASPA is the Professional and Amateur Sports Protection Act.

Now, PASPA banned states and individuals from operating sports gambling schemes.

Basically, a state could not license a sports gambling scheme, a state couldn't operate, or sponsor, or promote one, and an individual couldn't do any of those things either, even if the state authorized individuals to do it.

I could make a wager with Peter about the results of the Super Bowl, just him and I.

This is about, you know, the creation of sports gambling businesses, casinos, schemes.

So, Nevada and a few other places could still have their sports gambling.

And New Jersey, in the law, there was a special provision for New Jersey.

New Jersey was allowed to create a sports gambling scheme within one year of the passage of PASPA.

But at that time, in 1992 through 1993, New Jersey declined to do that.

Now, if a state violated PASPA, PASPA allowed a sports organization like the sports leagues or the attorney general to file a lawsuit to enjoin the state's actions, to file a lawsuit to get the state to not allow.

sports gambling scheme.

So let's go back to New Jersey, though.

PASPA gave New Jersey a year to create a sports gambling scheme if the state wanted to, and New Jersey declined to do that.

Fully, like more than 20 years later, though, the New Jersey ledge passed a law that did authorize sports betting.

And in that law, the state repealed previous laws on the books that prohibited sports gambling.

And so, under PASPA, five professional sports leagues and the NCAA sued under that federal law to enjoin the New Jersey law.

And New Jersey fought the lawsuit by arguing that PASPA is unconstitutional because it commandeers the state's lawmaking abilities.

So that's how we get to the Supreme Court.

Yeah.

All right.

Let's talk about the law here.

So,

federalism.

The Constitution grants the federal government certain powers, like the power to regulate commerce.

And in all other areas, the power resides within the states.

This is what we call federalism, the basic division of power between the federal government and the state governments.

Within that system, there's a question of how much the federal government can do to coerce states into doing what it wants.

A few decades ago, conservative legal scholars became very wary about this.

They were concerned about the increasing power of the federal government.

And in the 90s, the Supreme Court created what they call the anti-commandeering doctrine, which says that the federal government cannot commandeer state governments to do its bidding.

This doctrine is not in the Constitution, but it's also not entirely made up.

You can trace elements of it back to the Federalist Papers.

There's a common sense aspect here because state sovereignty wouldn't mean much if the federal government could essentially force their hand every which way.

But

the actual meaning of this doctrine has never been super clear.

Just to give some examples, the court has said that the federal government can't force state law enforcement to take certain actions because then you're commandeering state resources.

You're turning them into federal law enforcement, essentially.

Right, right, right.

But then on the other hand, the federal government can attach strings to federal funding in many cases.

So the reason that the drinking age is 21 across the country rather than 18, which is what it used to be almost everywhere, is because the government said that states need to make the age 21.

if they want to receive federal highway funds.

So the government can compel states to act in certain ways, but not in others.

Lots of gray areas.

That's sort of the backdrop here.

Yeah.

Alito writes the majority in this case.

He is joined by Roberts, Thomas, Gorsuch, Kennedy, and Kagan, as well as Breyer in part.

He creates a new rule based in this anti-commandeering doctrine.

He says that the federal government cannot issue commands to state legislatures.

This law says that states cannot license or promote sports betting, which serves as a command to state legislatures, so it's not allowed.

This is functionally an expansion of the anti-commandeering concept because it used to be that the federal government could not force the states to do something, and now the court is saying they can't tell the states not to do something either, right?

The principle is just that you can't tell state legislatures what they can and cannot do.

We're going to get into the practical realities of this decision, but first some legal nerd stuff.

The idea that the federal government can't command a state to do something might seem like it has common sense appeal, but it sort of clashes with how our system works.

There's an idea in the law called preemption.

If the federal government passes a law, any state law that contradicts it will generally be null and void.

It's preempted.

So if the Fed say, hey, the maximum allowable truck size is five tons,

and the state law says the max is six tons, the state law is preempted.

The max is five tons because the federal law is supreme.

So one argument you could make in support of laws like this is, well, isn't this sort of the same thing, right?

The federal government is telling the state government what it can and cannot do.

That's similar to preemption, but the majority says no.

The majority says the government can regulate what people do, what individuals do, but it can't tell states what to do.

But what that means in practice is that Congress can say, hey, we're banning sports betting.

No one can bet sports.

But they can't say, hey, state legislatures can't license sports betting.

Right.

Even though functionally, it's the same thing, right?

Those are basically the same thing.

So the court is saying you could basically have two functionally identical laws, and one might be constitutional while the other isn't, just based on how they're worded, whether you're telling people what to do or whether you're telling the states what to do.

I think for me, it's a little too cute.

You know what I mean?

A little too fucking cute, a little too formalistic.

That feels like it can't really be the rule.

That like

the federal government can, in fact, tell state legislatures what to do, as long as they're just sort of doing it in a roundabout way by directing people rather than the state legislature itself.

I don't get it.

It feels like one of those formalistic things that where it's like

you can see why conservatives like this, because it's a rule.

It's like a very clean rule, but I don't think it actually makes much sense.

Yeah, and that leads into, I think, Ginsburg's dissent really well.

There's a dissent in two concurrences, and I think it's good to start with Ginsburg's dissent, actually, because she makes this point.

She says there are like these two sections of the law, and one says states can't, you know, do the authorizing and licensing of sports gambling schemes.

And the others say states can't sponsor, operate, advertise, or promote sports gambling schemes.

And she's like, look, even if I

assume that the authorizing and licensing stuff is commandeering and unconstitutional, this other section is just saying

states can't do what federal law prohibits, which is

like

if we say individuals can't sports gamble, and that's what this statute says, if we say individuals can't sponsor, operate, advertise, or promote sports gambling schemes, then states can't either.

Like, states can't

fill the void of illegal activity.

And this seems transparently true

and like a major problem for the majority that they just don't really

deal with.

It's like the rule makes sense if you don't think about it yeah but if you think about it for even like

30 seconds you're like wait maybe this doesn't really work that well right it feels like the majority wanted a clear rule rather than a good one if that makes sense yeah

so you know i think that's like the best part of her dissent and it's very short which i think is a missed opportunity to talk about

you know the well-known ills of gambling The two concurrences, Breyers is not very interesting.

He's concurring in part and dissenting in part, saying sort of, I agree with the majority and with Ginsberg.

Classic, like saying nothing, doing nothing, Breyer.

Thanks for nothing.

Thomas has a concurrence that's very much about the concept of severability.

And that is

an idea in the law where if the court decides one fraction of a large law is unconstitutional, sometimes they can sever it and leave the rest of the law intact, and sometimes they don't.

You can strike down part of the law and not all of it.

And sometimes you have to strike down all of it because that's the only thing that makes sense.

Right.

And sometimes there's provisions in the law that say this section is severable or any section of this law is severable.

And sometimes there aren't.

And when there's no provision in the law, courts have to do an analysis.

And, you know, the analysis looks different from depending on the justice, but it's generally sort of like a, can the law function without this section?

Are there things that are unrelated to this section?

Or would the enacting Congress want the law to stand without this section?

Are the sorts of questions they ask?

And Thomas has this concurrence talking about how he wants to rethink this.

He wants to rethink this approach because he says it that at the founding, they didn't do this.

They just said, well, the law doesn't apply to you.

And that's it.

Yeah.

Also, at the founding, every law was three sentences long.

So, and this is irrelevant.

Right.

And at the founding, like any ruling they made had to be like transmitted by pony across the vast plains of the

virgin continent and took months

and just things took worked differently back then as a result.

Every law just said no Italians heretofore

in this nation.

So, I don't think this is like doctrinally interesting.

Like, it cloaks itself as being sort of

modest.

What it's really doing could be something very radical because, in the modern age, he says we don't strike down laws, we just say they don't apply.

But if the court says this law never applies to anyone anywhere under any circumstances, then the law is struck down.

That's just a stupid rhetorical game.

And if you can't sever stuff, that makes it much more likely that the court will be just striking down large portions of the federal law wholesale, for all intents and purposes, whatever language Thomas wants to use.

But he's also doing something interesting here that is, I think,

will be a theme I'll be touching on throughout this year, which is like myth-making.

And this is like sort of historical myth-making about the founders, their desires, and

doing the practice of law, but not the substance of law.

And I think this is what people try to get at when they say something is lawless, but

it's kind of not really well thought out.

So, I don't want to get too deep into it here until I have it fully thought out.

But he's not really trying to,

you know, engage in a conversation here.

He's trying to build a mythos

that will freeze society in a static picture that he likes.

And all the tools in his tool belt work towards this end.

And this is a very small example of that.

And so we'll be returning to this.

I'll be returning to this for sure many times this year.

Yeah, you know, on the point, especially around like what we're doing as modest, like.

I'm just a humble Supreme Court justice who wants to follow the founders.

founders' writings in the Federalist papers.

Yeah, and it's often a weapon that's wielded by the Supreme Court to make radical change where they don't want to talk about what the consequences of what they're doing will be.

They're just saying like, oh, we're just like striking down this little part or we're being really narrow in our ruling.

And it right creates this cover of supposed modesty to what they're doing.

But, you know, like we said at the beginning of the episode, really this case isn't, you know, so much about the legal reasoning and, you know, like conservatives just outright like being absolutely psychotic about the law or the Constitution.

It's what this case led to, which is widespread legalization of sports gambling across the country and what that has wrought.

The idea of appealing to the founding in this particular case, it's just such fucking bullshit.

If you showed Thomas Jefferson fan duel,

he would suicide bomb the Constitutional Convention.

The idea that you can like glean the outcome of this case from what happened in the 1700s.

It's, come on, come on.

Yeah, it's ridiculous.

I don't even think the sports that are being bet on had been invented at

hunting.

No, certainly not.

None of them.

Baseball, maybe?

I don't know.

Yeah, no, certainly not.

No, literally nothing.

They, God knows what kind of frilly little sports they were playing back then.

Yeah.

Like the one with the ball on a string on a pole, and you like slap it and it goes around in a circle and you keep slapping it.

I think that's exactly right.

I think Michael has said this really articulately in the past.

Like, this is a modern problem that needs modern solutions.

And so just thinking about how this modern problem was ushered in, the movement to to legalize sports betting really gained momentum with the push to legalize daily fantasy sports.

This is like in the early to mid-2010s.

FanDuel and DraftKings moved from state to state, lobbying state legislatures to allow fantasy sports betting.

And then they moved on to attacking the prohibition that PAPSPA.

enacted, the prohibition on betting on live sports.

And then sports leagues started to embrace it.

And after this case, there have been massive massive lobbying efforts, and all of these app companies, all of these sports betting companies, all of the money and corporate involvement in politics that has come from this case.

I think there's like two categories of things that like I would identify as political or social ills that this case allowed.

One is like a money in politics and a lobbying problem that's like demonstrated by what happened after this case.

And then the other is like the social ills of of gambling and what that does to families, the community.

So let's talk about sports betting and lobbying.

So as of right now, sports betting is now legalized in at least 38 states and DC.

In at least 24 of those states, you can bet on your phone.

on sports.

Now, Eric Lipton at the New York Times last year did some investigative reporting, observed lobbying efforts in states to get sports betting legalized.

You know, he watched while state legislators like met with lobbyists at bars where lobbyists were providing their favorite cigars and fancy whiskeys and all these gifts that aren't gifts and they're not bribes so that sports betting would be legalized.

This is extremely transactional relationships, not just getting sports gambling legalized in a state, but also all of the specifics of what that law would entail.

What would the lobbyists who represented sports betting companies like DraftKings and FanDuel, like what they would be getting out of the law being passed beyond just that people in the state could gamble on sports?

So, in Kansas, for example, Lipton reports on this.

The lobbyists were able to get a provision in the law that legalized sports betting in Kansas.

That provision allowed them to give out millions of dollars of free bets on their apps that they would not be taxed on.

Another provision of the law is that 80% of the taxes that the state does make off of sports betting was going to help build a new sports stadium in Kansas, not go to like the general welfare fund that would benefit Kansas residents.

$1.1 billion were made in bets in Kansas between the passage of the law and Lipton's reporting.

And only $2.7 million is tax revenue for the state because the tax rate was so low.

But with 80% going to the building of a stadium, that's like $500,000 out of $1.1 billion that actually goes to the general fund in Kansas that would, you know, actually benefit Kansans.

And this is just one example.

This is happening across the country.

In 2024, the National Gaming Association estimated that $35 billion in bets were placed on NFL games alone.

That's one league.

$35 billion.

That is nearly $3 billion a month.

And there are many, many social ills and studies that show those social ills that have come from the legalization of sports gambling.

One study showed that legal sports gambling depletes household savings.

For every $1 spent on betting, households put $2 less into investment accounts, for example.

For online sports gambling specifically, legalization increases the risk that a household goes bankrupt by 25 to 30 percent.

And in general, increases debt delinquency, the ability of a family or an individual to pay off loans or pay down debt.

Studies show modest decreases in credit scores that are caused by the legalization of sports betting, you know, general decreases in consumer health in general.

And studies also show that those most hurt by sports gambling are the least well off.

These problems concentrate among young men, especially who are living in lower-income counties in these states.

Something else really concerning has to do with domestic violence and intimate partner violence.

There were previous studies before the legalization of sports gambling that showed that an NFL home team's upset loss caused a 10% increase in reported incidence of men being violent towards their partner.

Now, in states where sports betting is legal, that effect is even bigger, maybe increases that by around 9%.

It's sort of interesting how this might operate because previously the research focused on, like Rhys saying, the home team losing.

But if you can bet on any game,

All of a sudden, it's not just about the home team.

Any game can sort of create this this risk of domestic violence ticking upward, like really disturbing numbers.

And by the way, some of the clearest that we've seen out of this research, like the uptick in bankruptcies was significant and the uptick in domestic violence was significant.

A lot of the other stuff, the credit score changes, were kind of nominal, but bankruptcies and domestic violence are...

You know, I don't want to get dramatic, but look like they're fucking skyrocketing when you look at this data.

Yeah.

Yeah.

You are widely increasing the level of stress or at least the potential of psychological stress across all sports, not just that like home team rivalry or whatever.

This is to say nothing of gambling addiction, which is incredibly serious and affects millions of people and is now like ever more accessible to you know sort of like be engaged with regular gambling because of the legalization and because sports gambling is available to do on your phone, in your hand at any time.

Some studies show that the legalization of sports gambling, it doesn't even shrink the illegal market.

So it doesn't help decrease illegal sports betting by legalizing it.

And back to this tax revenue point, studies also show that states aren't really benefiting in terms of making tax revenue off of the legalization of sports gambling.

they make less than tax revenue that they make off of alcohol sales, tobacco sales, marijuana sales.

States that have legalized sports betting, that is at least 38 plus DC,

make half a billion dollars in tax revenue combined.

All 38 states plus DC every quarter.

So, you know, this is maybe $2 billion

a year in tax revenue, but that is combined.

If you think about the many, many, many billions of dollars actually being

wagered.

This really resonates with me because, you know, I had a family member who was addicted to gambling and like a serious addiction,

lost her job for stealing

tens of thousands of dollars from it, ended up bankrupting it, closing the company to feed a gambling habit.

She also loved, and a lot of my most cherished memories are

with her watching sports, watching South Florida sports, watching the Heat, the Dolphins, and the Florida Panthers, the hockey team.

And I'm thankful in a lot of ways she's no longer with us

that

she wasn't around to see this because

I don't know how she would have handled a world where her favorite thing is including constantly being bombarded with ads for gambling, which, you know, ruined her life in a lot of ways, inviting her, enticing her to get back into it, and the ease of having it available right there on her phone.

This law did good things.

Like, people's lives are ruined by this.

And the court just sort of

half-assed its way through a pretty short opinion, doing away with it, and opening this like

legit Pandora's box of social ills.

Yeah.

It's just, it's difficult to even

reading this opinion just made me extremely upset in how cursory every opinion is.

Nobody took this very seriously at all, I think, majority or dissent.

Yeah.

This feels a little bit like old school 5-4.

Like Congress passed like a relatively clear law with a very clear intent.

And then 30 years later, Supreme Court trudges in being like, oh, you didn't use the magic words.

Right.

Oh, and now sports betting is legal across the country.

Oops.

Oops.

Like, it's such bullshit.

This is just such a quintessential, like, this can't be

how law is done in our country.

It's such fucking thing.

And, you know, in the early or mid-90s, it was a good thing, I think, that there was political will to get a law like this passed.

Now that the Supreme Court struck it down, Michael, I think you said this in prep.

There's no political will to fix the problem that this has wrought.

And it's just really sad.

I just think it's a sad state of our politics and how the political institutions are dealing with one another.

Right.

Yeah.

I mean, I think this story is a great illustration of like all these intersecting dysfunctions in our federal and state governments.

Right.

Like you have congressional dysfunction that makes passing anything but these huge omnibus bills and budget bills impossible.

And that leads to these like court dysfunction where they feel free to remake society as they see fit because there's no legislative check on them.

And then you have like state dysfunctions where things like, you know, not enough local media, and that's a whole other discussion, and campaign finance laws, which are their own sort of dysfunction thanks to the Supreme Court.

You have lobbyists able to, you know, whine and dine legislators and buy them for unbelievably cheap.

And so it's like this half-baked political will.

Like it's been 30 years, so there's not not like

a big constituency for

really caring about gambling at this point.

People are complacent, but there is a small and well-funded constituency for

legalizing it because they see an opportunity to make lots of money on the backs of people's misery.

And the court is in position to say,

we're not saying gambling has to be legal.

We're just saying,

oh, you didn't quite phrase this right.

You didn't quite structure this right.

And then tossing it into this dysfunctional mess.

And what we're left with is what we have now, which is truly hellish.

Truly.

And another situation, it reminds me a little bit of like Citizens United, where the court strips away.

the protections from keeping all this money flowing through our system.

And then the money starts flowing, and the court's like, well, you can pass another law, but it's too late.

The lobbyists have their claws in the politicians.

It's too late.

Now we have companies that are running multi-billion dollar operations reliant on sports betting.

I mean, it's too late, right?

If Congress isn't going to ban fan duel now, it takes the whole economy out.

Like this classic sort of Supreme Court move, unleash the money and then be like, well,

oops.

You know, I guess it's too late.

I guess you guys don't want to fix it.

There's another thing I want to, it's sort of ancillary here, but it's not immediately obvious, but there are a bunch of federal laws that do what the Supreme Court is saying you can't do, which is commanding state legislatures.

Right after this case came out, a professor at Georgetown, Brian Gall, I think it's pronounced, wrote about this.

There are federal laws that limit the ability of states to impose various taxes.

States are limited in the taxes taxes that they can impose on Fannie and Freddie Mae, for example.

This is all considered part of Congress's commerce power.

Congress can regulate commerce.

That means they can do things that prevent the states from impeding commerce.

You learned about this in law school.

When this case came out,

Some scholars were really concerned about what might happen to these laws, right?

And so far, we haven't really seen any significant challenges.

I think because no one really thinks the Supreme Court meant to intrude upon these laws, which I'm bringing up not because like I'm worried about these laws getting struck down necessarily, but because I think it goes to show that like the court

just created a rule that lives in a fantasy world, right?

It's a rule that doesn't account for how our country actually functions because the justices don't really know how it functions.

And that should be the takeaway from this case.

Like the case sucks because it's a great example.

of the court living in a theoretical reality rather than an actual reality.

They strike down a a law based on a rule that they pulled out of thin air, completely ignoring the day-to-day function of our government.

This fully formed government policy designed to limit gambling gets struck down.

And then

you get widespread gambling, which leads to all of the social ills that Congress was looking to prevent.

And I want to be clear that like our position is not that the federal government should be able to boss states and localities around.

If the federal government could just tell states and cities what to do,

you wouldn't have sanctuary cities, for example.

And there's about to be a big legal fight about that exact issue.

So it's not that like we have any particularly strong feelings about the anti-commandeering doctrine here.

This case is just about a court that is veering out of control, like doctrinally sloppy and also too willing to step in and make policy wherever it sees fit.

You know, that's what I take away from this case.

And I guess the last thing we should talk about is how this has basically just ruined sports.

It's awful.

All of the ads.

It's really

terrible.

We were talking about this.

The sports betting apps saturating the entire sports experience feels like a microcosm of this bigger thing.

It feels like nearly every

product and service and experience is decaying a little bit, especially as companies get bigger and prioritize growth, which means they take existing services and they bleed them dry, more ads, more monetization.

Fucking Google feeds you five sponsored ads before you get your first search result.

Everything feels like a worse version of what we had before.

Part of this is probably in our heads, probably not entirely true, but sports feels like one area where it's objectively true.

And so does ads.

And this is really a tangent, but we were talking about this.

Ads are getting bizarrely bad.

And the sports betting app ads are so bad that I can't even comprehend it sometimes.

Like you'll see it and be like,

what was that?

Yeah.

Like it's almost like they're just flashing images and colors in front of your brain, trying to get you to remember what, like fan duel or whatever.

It feels insane.

Yeah, no, it's pretty crazy.

And, you know, there's also this like complicating wrench in the whole thing for me, which is like going back to the problem of sports gambling on sport itself.

And the fact that in many of these ads, athletes themselves are participating, right?

Get paid by the sports gambling companies to participate in ads to promote sports gambling.

And obviously, you know, there's like a ticky tack kind of narrow thing.

Well, the athlete themselves, LeBron James is, you know, certainly prohibited from betting on nba games right of course but like we're we're blurring lines here very obviously right absolutely yeah absolutely you know this might be nostalgia i might be wrong but i feel like as a kid there were like three types of ads like a taxonomy which was like

you know, polished sort of legitimate companies like Budweiser with like the Clydesdales or something.

And they'd have themes and they'd have jugles and they'd have you know running gags and characters right or like the mayhem guy for the insurance company and then there would be local ads which is just like a dude in front of his store talking to the camera and then the third would be like scammy companies and they would feel very scammy and they would be

like

yeah just like the american flag and they would repeat their name like five or six times over and over and over and try to just like drill it into your brain.

And it feels like that third category of ads is becoming the only category of ads.

And it makes me feel like our entire economy is becoming like a scam economy.

You know, does that.

Yeah, I know what you mean.

It feels like, you know, people use the term inshidification, right?

Which is this very specific term, I guess.

It's about, you know, platform decay, but it feels like it has a broader application in these contexts where like

everything feels a little bit more like a scam than it was before.

And it's like it bleeds into things like the ads, where even the ads,

they feel like half baked in a way that makes you feel like you're being scammed.

I was telling you guys about,

this isn't gambling related, but I said this was a tangent.

The Snoop Dogg Mahomes ad is one of the weirdest ads I've ever seen.

I just saw it after we talked about it.

I was like, oh my God, it's so terrible.

It's like someone pitched the idea of, oh, let's have it be a thing where Mahomes announces that he's leaving and everyone's freaking out, but it turns out he was just leaving his cell phone provider to go to T-Mobile or whatever, which fine.

That's a very basic hack commercial gag, but they don't actually do the gag.

Instead, they have Snoop Dogg explain the gag.

He's like, Mahomes said he was leaving.

People was tripping.

Turns out he just meant he was leaving his provider.

So there's no, you skipped over the joke.

It's just Snoop explaining the structure of the joke that you would have made.

It's bizarre.

It's the sign of a dying civilization.

I don't know any other way to put it.

Like, what's happening?

There are two ads for me that are like that.

One, we talked about this, is the beer ad with Stavros and

Andrew Santino.

Is that his name?

These are two stand-up comedians.

They're doing a beer ad.

And it starts with on Santino and he's like, your team lost.

And then like the camera pans over in a clear cut because they're clearly not even on the same set or recording at the same time.

And they cut to Stavros looking up and he's like shaved his eyebrows or something.

And I'm like.

It's so fucking weird and stilted.

It's not.

You have two funny guys.

It's not funny.

I don't understand.

I don't even know what beard's for because I get so upset watching it that I like fucking black out.

Like I black out.

It's bizarre.

There's something about this that like you're on social media and you're getting bombarded with absolute toxic nonsense.

And then you're like, all right, well, let me take a break from that.

Go to traditional media.

And even that feels like a fever dream.

It feels like this weird, out-of-body sort of experience where you're like, this isn't quite what a commercial is.

This is what my feverish brain thinks a commercial should be.

The fever dream, I was literally saving that phrase for the last ad, which is the Salesforce ad for its AI product Agent Force.

Just saying that sentence makes me feel like I'm in a fever dream.

But it's Matthew McConaughey sitting at a table outside of a restaurant in the pouring rain,

upset that he's sitting in the pouring rain saying this sort of fiasco

you know is what happens when you don't use ai and they bring you food you don't like and a waiter in a poncho drops off a shrimp cocktail for him and he's like looking at the shrimp cocktail like oh i fucking hate shrimp cocktail like what

What dining experience is this?

This has never,

ever happened in the history of dining.

Has anybody been sat in the pouring rain and stayed there and then received service by a waiter in a poncho bringing them something they didn't order and do not want.

What are you talking about?

Like, this is not a problem that people have.

And AI will solve this problem?

That's what AI brings to you.

I wonder whether they had AI write that commercial as proof of concept.

It feels like it has to be.

I don't get it.

I don't get it.

Like,

it makes me feel like I'm going insane when I watch it.

Like,

obviously, we're on a sort of tangent here.

I feel like this is sort of evocative of the feeling that 2025

is going to give us.

It just feels like a bunch of stupid ghouls are at the helm of everything, of everything.

Yeah, and that's almost what I feel like our job is because I was like, well, what is our goal as a podcast under fascism?

Now, one is to just talk about the court and the law in the way that we always have, and I think a way that has been proven largely correct.

But the other is like,

the world around you

is in fact a swirling nightmare.

And I feel like it's sort of our job to be like that one foot on the ground that you have

where you will see something like those commercials.

like a Supreme Court decision, and you will feel insane.

And maybe if we do our job you will listen to us and feel a little bit less insane that's like that's what i that's my my resolution for the podcast for the coming year that's a good goal i like that yes

all right next week tick tock v garland It's the TikTok case, folks, the case about the TikTok ban that dropped a few days ago.

Everyone wanted us to do an emergency episode on this one, but we decided against because the situation is evolving.

It's a bit dynamic as we record this.

So we thought we would let things play out for a few days and then give you the full scoop.

It's going to be a good one.

And before we say bye, our next Patreon app is going to be a mailbag app where we answer your questions.

So if you're a Patreon member and you want to hear your question answered, shoot it to fivefourpod at gmail.com.

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We will see you next week.

Bye.

Bye.

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