 nstead
of asking Supreme Court nominees whether they will uphold Roe
v. Wade, henceforth members of the Senate Judiciary Committee
can ask prospective nominees to guess the number of calories consumed
by walking a golf course. Is it equal to: (A) an hour on the Stairmaster,
(B) a Big Mac, or (C) a jelly bean?
That was a
major factor in the Supreme Court's recent opinion in PGA Tour
v. Casey Martin. The court found that walking was not "fundamental"
to the game of golf, which turned in part on the answer to the above
question. (For constitutional scholars, the answer is: (B) a Big
Mac.)
But the central
point of the court's opinion is this: Its arrogance knows no bounds.
The Supreme Court has now presumed to tell the PGA, Jack Nicklaus,
and Arnold Palmer what is "essential" to the game of golf.
Among the many
"wrong turns" — as the magnificent Antonin Scalia put
it — the court took on its way to total hegemony over recreational
activity in America, it interpreted the Americans With Disabilities
Act to apply to pro golfers. Taking an unconstitutional law to all-new
unconstitutional levels, it found the PGA Tour is a "public
accommodation" and Casey Martin is a "customer."
Playing in the PGA is just like buying an ice-cream cone.
Justice Anthony
Kennedy has described the ADA as "a milestone on the path to
a more decent, tolerant, progressive society" — which tells
you about all you need to know. Also a milestone on the path to
a less free society. However indecent, intolerant, and regressive
the PGA's rules were before our philosopher kings barged in, they
did not allow federal bureaucrats to dictate to private associations.
But the ADA
hook was just absurd jurisdiction-grabbing. The court might as well
have purported to be interpreting the ABM Treaty. After Martin,
it is difficult to conceive of any petty dispute that seven justices
of the Supreme Court will deem themselves unqualified to resolve.
Mommy sent you to bed without dinner? Take it to the Supreme Court!
I keep hearing
what a wonderful fellow Casey Martin is. I'm evidently supposed
to change my mind about a tyrannical decision if only I know the
real man behind the oppression. He suffers from a disability, has
a warm personality, is kind to animals and makes his own clothes!
(No wait — that's how my brother claims Mother used to describe
his prospective blind dates.) Fine. Maybe Martin is all that and
more. Unlike Hollywood movies, in real life, bad people usually
aren't evil incarnate.
Whatever his
other virtues, however, Martin did warm to the idea of taking freedom
from his fellow Americans. He thought it was appropriate to ask
the Supreme Court to intervene in his dispute with a private organization
and rewrite the organization's rules. On account of their own disabilities
— a severe incapacity for rational self-perception — seven Supreme
Court justices took the bait.
Last December,
the New York Times was worrying itself sick about the court
losing its hard-earned "prestige" after Bush v.
Gore. But the PGA case, it nonchalantly put on the sports
pages. (Both Justice John Paul Stevens and Sandra Day O'Connor have
hit holes in one, the Times earnestly reported.)
This is a sports
story like the Japanese internment was a story about new home-building
in Idaho. TheTimes would put that in the Home section. In
a nice touch, Justice "THIS DAY WILL LIVE IN INFAMY!"
Stevens wrote the opinion in the golf case. He must have gotten
over that concern about the prestige of the judiciary expressed
with sound-bite perfection in Bush.
It now seems
preposterous that anyone ever thought the Supreme Court would not
decide the election case. The least that can be said for the court's
ruling in Bush is that it was interpreting real constitutional provisions
about a federal election. This court will tell the PGA the rules
of golf.
It only adds
insult to injury that the court's decision in this case is hated
by golfers everywhere. In its unerring capacity to create angry
factional mobs from an otherwise peaceful populace, there is widespread
loathing of the court's substantive ruling. Had the PGA changed
the rule on its own, there might have been sotto voce griping. It
takes a Supreme Court ruling to really tick off the whole country.
The Martin
decision is a case study of why our judges go bad and theirs never
do. To quote Justice Scalia in another case, "This is why Lord
Acton did not say, 'Power tends to purify.'" The only difference
between the Martin case and Roe v. Wade is the slaughter.
Abortion, rules of golf — whatever. Anyone's snit can now be decided
by the Supreme Court. Our "evolving Constitution" has
evolved from a constitution to abortion trimesters to the "fundamentals"
of golf.
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