“Essential”

The Faculty Lounge had an interesting post about Justice Scalia’s view of arbitrary rules.  I found this particularly interesting because I like to walk when I play golf.  Justice Scalia spent a lot of time in Mississippi but he never tried to walk and play golf here in July, August or September.  It’s hot!  Enjoy the article.

Scalia’s Dissent in PGA Tour, Inc. v. Martin

In 2001 the Court heard the case of PGA Tour, Inc. v. Martin, which arose from an unusual lawsuit by Casey Martin, a professional golfer. Martin suffered from a degenerative circulatory disorder that atrophied his right leg and eventually prevented him from walking 18-hole golf courses. Accordingly, he brought suit to force the Professional Golfers Association Tour to permit him to ride a golf cart rather than walk from hole-to-hole, as PGA rules required.

In a 7-2 decision written by Justice Stevens, the Supreme Court ruled in favor of the golfer, holding that “the walking rule is at best peripheral to the nature of petitioner’s athletic events, and thus it might be waived in individual cases without working a fundamental alteration” to professional golf tournaments.

But in a dissent joined by Justice Thomas, Justice Scalia took the majority to task for exercising “a benevolent compassion that the law does not place it within our power to impose.” After rejecting the notion that the Americans with Disabilities Act even applied to a professional golfer, Scalia emphasized the inherently arbitrary nature of sports rules.

In the world of sports, he explained, “[t]he 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.

Surveying the world of sports, Scalia concluded that the Court was on a fool’s errand in attempting to determine the “essential” elements of any sport:

“Either out of humility or out of self-respect . . . 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.’”

The crucial point, Scalia emphasized, was that all sports-related rules evolved from arbitrary traditions:

“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.”

In Justice Scalia’s view, therefore, it was up to the PGA Tour and not the Supreme Court to decide whether walking was an “essential” element of the game of golf.

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