**DONOTDELETE**
05-30-2001, 06:08 PM
The Supreme Court by a 7-2 vote has ruled that the PGA must accomodate a golfer who needs to use a golf cart to get around. The Court rules that this is required under the Americans With Disabilities Act.
The following passage is from the dissent by Scalia as joined by Thomas in PGA Tour v Martin . This is Antonin at his waspish best and a fun read:
Whole case at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-24
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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 Governments 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. To say that something is essential is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a games arbitrary rules is essential. Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields all are arbitrary and none is essential. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport both of which factors support the PGA TOUR’s position in the present case. (Many, indeed, consider walking to be the central feature of the game of golf hence Mark Twain’s classic criticism of the sport: a good walk spoiled.) I suppose there is some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game. If the PGA TOUR competitors were required to dribble a large, inflated ball and put it through a round hoop, the game could no longer reasonably be called golf. But this criterion destroying recognizability as the same generic game is surely not the test of essentialness or fundamentalness that the Court applies, since it apparently thinks that merely changing the diameter of the cup might fundamentally alter the game of golf, ante, at 20.
Having concluded that dispensing with the walking rule would not violate federal-Platonic golf (and, implicitly, that it is federal-Platonic golf, and no other, that the PGA TOUR can insist upon) the Court moves on to the second part of its test: the competitive effects of waiving this nonessential rule. In this part of its analysis, the Court first finds that the effects of the change are mitigated by the fact that in the game of golf weather, a lucky bounce, and pure chance provide different conditions for each competitor and individual ability may not be the sole determinant of the outcome. Ante, at 25. I guess that is why those who follow professional golfing consider Jack Nicklaus the luckiest golfer of all time, only to be challenged of late by the phenomenal luck of Tiger Woods. The Courts empiricism is unpersuasive. Pure chance is randomly distributed among the players, but allowing respondent to use a cart gives him a lucky break every time he plays. Pure chance also only matters at the margin a stroke here or there; the cart substantially improves this respondents competitive prospects beyond a couple of strokes. But even granting that there are significant nonhuman variables affecting competition, that fact does not justify adding another variable that always favors one player.
In an apparent effort to make its opinion as narrow as possible, the Court relies upon the District Courts finding that even with a cart, respondent will be at least as fatigued as everyone else. Ante, at 28. This, the Court says, proves that competition will not be affected. Far from thinking that reliance on this finding cabins the effect of today’s opinion, I think it will prove to be its most expansive and destructive feature. Because step one of the Courts two-part inquiry into whether a requested change in a sport will fundamentally alter [its] nature, 12182(b)(2)(A)(ii), consists of an utterly unprincipled ontology of sports (pursuant to which the Court is not even sure whether golfs essence requires a 3-inch hole), there is every reason to think that in future cases involving requests for special treatment by would-be athletes the second step of the analysis will be determinative. In resolving that second step determining whether waiver of the nonessential rule will have an impermissible competitive effect by measuring the athletic capacity of the requesting individual, and asking whether the special dispensation would do no more than place him on a par (so to speak) with other competitors, the Court guarantees that future cases of this sort will have to be decided on the basis of individualized factual findings. Which means that future cases of this sort will be numerous, and a rich source of lucrative litigation. One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their sons disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)
The statute, of course, provides no basis for this individualized analysis that is the Courts last step on a long and misguided journey. The statute seeks to assure that a disabled persons disability will not deny him equal access to (among other things) competitive sporting events not that his disability will not deny him an equal chance to win competitive sporting events. The latter is quite impossible, since the very nature of competitive sport is the measurement, by uniform rules, of unevenly distributed excellence. This unequal distribution is precisely what determines the winners and losers and artificially to even out that distribution, by giving one or another player exemption from a rule that emphasizes his particular weakness, is to destroy the game. That is why the handicaps that are customary in social games of golf which, by adding strokes to the scores of the good players and subtracting them from scores of the bad ones, even out the varying abilities are not used in professional golf. In the Courts world, there is one set of rules that is fair with respect to the able-bodied but individualized rules, mandated by the ADA, for talented but disabled athletes. Ante, at 29. The ADA mandates no such ridiculous thing. Agility, strength, speed, balance, quickness of mind, steadiness of nerves, intensity of concentration these talents are not evenly distributed. No wild-eyed dreamer has ever suggested that the managing bodies of the competitive sports that test precisely these qualities should try to take account of the uneven distribution of God-given gifts when writing and enforcing the rules of competition. And I have no doubt Congress did not authorize misty-eyed judicial supervision of such a revolution.
* * *
The following passage is from the dissent by Scalia as joined by Thomas in PGA Tour v Martin . This is Antonin at his waspish best and a fun read:
Whole case at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-24
* * *
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 Governments 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. To say that something is essential is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a games arbitrary rules is essential. Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields all are arbitrary and none is essential. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport both of which factors support the PGA TOUR’s position in the present case. (Many, indeed, consider walking to be the central feature of the game of golf hence Mark Twain’s classic criticism of the sport: a good walk spoiled.) I suppose there is some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game. If the PGA TOUR competitors were required to dribble a large, inflated ball and put it through a round hoop, the game could no longer reasonably be called golf. But this criterion destroying recognizability as the same generic game is surely not the test of essentialness or fundamentalness that the Court applies, since it apparently thinks that merely changing the diameter of the cup might fundamentally alter the game of golf, ante, at 20.
Having concluded that dispensing with the walking rule would not violate federal-Platonic golf (and, implicitly, that it is federal-Platonic golf, and no other, that the PGA TOUR can insist upon) the Court moves on to the second part of its test: the competitive effects of waiving this nonessential rule. In this part of its analysis, the Court first finds that the effects of the change are mitigated by the fact that in the game of golf weather, a lucky bounce, and pure chance provide different conditions for each competitor and individual ability may not be the sole determinant of the outcome. Ante, at 25. I guess that is why those who follow professional golfing consider Jack Nicklaus the luckiest golfer of all time, only to be challenged of late by the phenomenal luck of Tiger Woods. The Courts empiricism is unpersuasive. Pure chance is randomly distributed among the players, but allowing respondent to use a cart gives him a lucky break every time he plays. Pure chance also only matters at the margin a stroke here or there; the cart substantially improves this respondents competitive prospects beyond a couple of strokes. But even granting that there are significant nonhuman variables affecting competition, that fact does not justify adding another variable that always favors one player.
In an apparent effort to make its opinion as narrow as possible, the Court relies upon the District Courts finding that even with a cart, respondent will be at least as fatigued as everyone else. Ante, at 28. This, the Court says, proves that competition will not be affected. Far from thinking that reliance on this finding cabins the effect of today’s opinion, I think it will prove to be its most expansive and destructive feature. Because step one of the Courts two-part inquiry into whether a requested change in a sport will fundamentally alter [its] nature, 12182(b)(2)(A)(ii), consists of an utterly unprincipled ontology of sports (pursuant to which the Court is not even sure whether golfs essence requires a 3-inch hole), there is every reason to think that in future cases involving requests for special treatment by would-be athletes the second step of the analysis will be determinative. In resolving that second step determining whether waiver of the nonessential rule will have an impermissible competitive effect by measuring the athletic capacity of the requesting individual, and asking whether the special dispensation would do no more than place him on a par (so to speak) with other competitors, the Court guarantees that future cases of this sort will have to be decided on the basis of individualized factual findings. Which means that future cases of this sort will be numerous, and a rich source of lucrative litigation. One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their sons disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)
The statute, of course, provides no basis for this individualized analysis that is the Courts last step on a long and misguided journey. The statute seeks to assure that a disabled persons disability will not deny him equal access to (among other things) competitive sporting events not that his disability will not deny him an equal chance to win competitive sporting events. The latter is quite impossible, since the very nature of competitive sport is the measurement, by uniform rules, of unevenly distributed excellence. This unequal distribution is precisely what determines the winners and losers and artificially to even out that distribution, by giving one or another player exemption from a rule that emphasizes his particular weakness, is to destroy the game. That is why the handicaps that are customary in social games of golf which, by adding strokes to the scores of the good players and subtracting them from scores of the bad ones, even out the varying abilities are not used in professional golf. In the Courts world, there is one set of rules that is fair with respect to the able-bodied but individualized rules, mandated by the ADA, for talented but disabled athletes. Ante, at 29. The ADA mandates no such ridiculous thing. Agility, strength, speed, balance, quickness of mind, steadiness of nerves, intensity of concentration these talents are not evenly distributed. No wild-eyed dreamer has ever suggested that the managing bodies of the competitive sports that test precisely these qualities should try to take account of the uneven distribution of God-given gifts when writing and enforcing the rules of competition. And I have no doubt Congress did not authorize misty-eyed judicial supervision of such a revolution.
* * *