Bench Memos

Law & the Courts

‘What Is Golf’?

In his characteristically thoughtful review of The Essential Scalia, John McGinnis observes that “so many pages crackle with jokes and humorous sallies that it is difficult to single out any of them.” But for “providing sustained jollity that will stay with you throughout the day,” he particularly recommends Justice Scalia’s “marvelous” dissent in PGA Tour v. Martin.

The legal question in the case was whether the Americans with Disabilities Act required the PGA Tour to accommodate professional golfer Casey Martin’s disability by permitting him to use a cart during tournaments. A seven-justice majority held that it did. Justice Scalia, joined by Justice Thomas, dissented.

Below is a five-paragraph excerpt from Scalia’s dissent. Be sure to make your way to the third paragraph. You’ll be glad you did.

Since it has held (or assumed) professional golfers to be customers “enjoying” the “privilege” that consists of PGA Tour golf; and since it inexplicably regards the rules of PGA Tour golf as merely “policies, practices, or procedures” by which access to PGA Tour golf is provided, the Court must then confront the question whether respondent’s requested modification of the supposed policy, practice, or procedure of walking would “fundamentally alter the nature” of the PGA Tour game. The Court attacks this “fundamental alteration” analysis by asking two questions: first, whether the “essence” or an “essential aspect” of the sport of golf has been altered; and second, whether the change, even if not essential to the game, would give the disabled player an advantage over others and thereby “fun­damentally alter the character of the competition.” It answers no to both.

Before considering the Court’s answer to the first question, 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 (much as the American League promotes a game of baseball in which the pitcher’s turn at the plate can be taken by a “designated hitter”)? If members of the public do not like the new rules—if they feel that these rules do not truly test the individual’s skill at “real golf” (or the team’s skill at “real baseball”)—they can withdraw their patronage. 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,” 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 game’s 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.

Having concluded that dispensing with the walking rule would not violate federal-Platonic “golf,” 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.” 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 Court’s 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 respondent’s 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.