Why the Supreme Court Was Right to Leave the Ballroom and the Betting Floor Alone—for Now

I am told that in your capital a dispute about a ballroom renovation at the chief magistrate’s residence reached the Supreme Court, and that the Court, by a narrow majority, allowed the work to proceed while declining to make itself the arbiter of every nail and cornice. Commentators have described this as the Court “sitting out the dance” between the president and the legislature. The image is a happy one. There are occasions when the highest bench best performs its office not by joining the minuet, but by remaining in its chair, and remembering that not every quarrel in a great city is improved by the addition of nine more dancers.

Another such quarrel now approaches, this time over sports‑related betting contracts. One tribunal, the 3rd Circuit, declares that federal regulators, not a state gaming board, must govern a firm’s sports event contracts; another circuit has, it seems, taken a different view. You call this a “circuit split,” but in substance it is an argument about jurisdiction and about who may tax, regulate, and perhaps prohibit a particular branch of trade. As in all such controversies, there are noble invocations of the public good, and there are also fees, franchises, and rents which particular interests are most unwilling to forgo.

When I wrote of the division of labour in the pin‑workshop in The Wealth of Nations, I observed that specialization increases dexterity, but that it is limited by the extent of the market. Something similar is true of the division of labour among institutions. It is useful that there be local regulators who know the taverns, the betting shops, and the habits of their neighbourhood; it is useful also that there be national rules for contracts that spread across the whole country. But when jurisdictions overlap without clear boundaries, the market for justice itself is narrowed: actors must pay lawyers to navigate confusion, and the ordinary bettor or small trader is taxed in time and anxiety rather than in coin.

Before we call upon the Supreme Court to resolve such confusion by one sweeping pronouncement, we ought to trace who would gain and who would pay. The benefits of a single, uniform rule are advertised in bright colours by those firms that desire to operate “in all 50 states” under one favourable regime. The costs—lost experiments by states, diminished local oversight, new opportunities for well‑connected companies to entrench themselves—are dispersed among citizens who do not write petitions. In cases of trade regulation, as I argued in The Wealth of Nations, the project of merchants commonly deserves the most suspicious attention, not because they are monsters, but because their interest in narrowing competition is constant while the public’s vigilance is intermittent.

The impartial spectator, of whom I treated in The Theory of Moral Sentiments, would ask what praise or blame is due to the Court if it again “sits out the dance” in the betting case, at least for a time. Would a well‑informed and disinterested observer think it praiseworthy for judges, distant from the betting halls and the regulatory offices, to impose a single scheme on all parties, or more praiseworthy to wait until the conflict of jurisdictions ripens, the facts are clearer, and the abuses—whether of federal overreach or state partiality—stand plainly revealed? Self‑command belongs to institutions as well as to men; a court that can resist the temptation to play universal umpire is more respectable than one which seizes every occasion to display its authority.

Some will object that abstention is only a genteel name for cowardice, and that where money changes hands at great scale, the national government must always step in lest vice triumph. I confess no fondness for gambling; it commonly transfers wealth from the poor in information to the rich in information, and rarely adds to the annual produce of the land and labour. Yet the question here is not whether betting is a noble occupation, but which part of the state is best placed to limit its harms. In the great chess‑board of human society, as I once remarked, each piece has a motion of its own; to suppose that judges in a distant capital can arrange regulators, traders, and punters as easily as chessmen is to mistake the nature of the game.

The better course, in both ballroom and betting hall, is a modest one. Let Congress clarify its own building rules if it displeases them to see their grounds altered; let the legislative power determine how far federal authority over these contracts shall extend, and how much shall remain with the states. Let the courts, meanwhile, decide concrete cases when they must, but beware of transforming every conflict of interest into a constitutional crisis. The natural progress of opulence and of law alike is gradual, experimental, and often untidy; the shortest road to disorder is the man of system who would tidy it all at once.