Saturday, February 20, 2016

A Round of Platonic Golf Anyone? - A Scalia Dissent

To get some idea of why Antonin Scalia as Supreme Court justice is held in such high regard one only need read his dissent in PGA Tour, Inc. v Martin. That it isn’t a major case may make it more accessible on its own terms. The case involved a professional golfer, Casey Martin, who suffered from a degenerative birth defect that made walking increasingly painful who sued the PGA Tour to use a by rules prohibited golf cart in competition under the American Disabilities Act. The majority sided with Martin, with Scalia writing the dissent and joined by Thomas.

Scalia’s first and perhaps most fundamental objection is that the case fits the ADA requirements. He begins:

The Court holds that a professional sport is a place of

public accommodation and that respondent is a “customer"

of “competition” when he practices his profession.

Ante, at 17. It finds, ante, at 18, that this strange conclusion

is compelled by the “literal text” of Title III of the

Americans with Disabilities Act of 1990 (ADA),

This is indeed a strange conclusion. As Scalia points out the court is turning a player of a professional sport into a fan of that event. Scalia notes that one of the examples of public accommodation is a zoo. In this case, the court has confused the animals for those that come to see them. It does this by claiming the player is a customer of the PGA Tour and or of the course the events are played on. Again, as Scalia notes, this is absurd.

 The court then finds itself asking, a question that Scalia clearly thinks is irrelevant, whether walking is fundamental to the game of golf.


it is worth pointing out that the assumption which

underlies that question is false. Nowhere is it writ that

PGA TOUR golf must be classic “essential” golf. Why

cannot the PGA TOUR, if it wishes, promote a new game,

with distinctive rules.

 And from there he goes on memorably in a way that makes reading a legal dissent as pleasurable as reading any novel:


But the rules are the rules.

They are (as in all games) entirely arbitrary, and there is

no basis on which anyone— not even the Supreme Court of

the United States— can pronounce one or another of them

to be “nonessential” if the rulemaker (here the PGA

TOUR) deems it to be essential.


If one assumes, however, that the PGA TOUR has some

legal obligation to play classic, Platonic golf— and if one

assumes the correctness of all the other wrong turns the

Court has made to get to this point— then we Justices

must confront what is indeed an awesome responsibility.

It has been rendered the solemn duty of the Supreme

Court of the United States, laid upon it by Congress in

pursuance of the Federal Government’s power “[t]o regulate

Commerce with foreign Nations, and among the several

States,” U. S. Const., Art. I, §8, cl. 3, to decide What Is

Golf. I am sure that the Framers of the Constitution,

aware of the 1457 edict of King James II of Scotland prohibiting

golf because it interfered with the practice of

archery, fully expected that sooner or later the paths of

golf and government, the law and the links, would once

again cross, and that the judges of this august Court

would some day have to wrestle with that age-old jurisprudential

question, for which their years of study in the

law have so well prepared them: Is someone riding around

a golf course from shot to shot really a golfer? The answer,

we learn, is yes. The Court ultimately concludes, and it

will henceforth be the Law of the Land, that walking is not

a “fundamental” aspect of golf.


Either out of humility or out of self-respect (one or the

other) the Court should decline to answer this incredibly

difficult and incredibly silly question.

 As I said, this isn’t the most important of Scalia’s opinions. But I doubt you will find a more compelling and entertaining argument in opposition to its current reach and its propensity to insert itself where it doesn’t belong.

 The full dissent can be found here:

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