There is nothing wrong with trying to "revise" the constitution. That is what amendments do.
That's right. But it's not what justices do. Or at least it's not what they are supposed to do.
Justice Scalia's dissents are legendary, but one of his greatest was PGA v. Martin, where he excoriated the 7 member majority, using both wit and ridicule. I think my favorite argument is where he discussed the august Court weighing the prominent and heart-rending issue of whether walking is as essential to golf as having a 3-inch cup or 18 holes. His parting shot:
"Complaints about this case are not "properly directed to Congress," ante, at 27-28, n. 51. They are properly directed to this Court's Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are 'places of public accommodation' to the competing athletes, and the athletes themselves 'customers' of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable 'essential' and 'nonessential' rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one's lack of ability (or at least no one's lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and 'everybody was finally equal.' K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997)."
The Court meddling where it ought not is what Scalia spent a career fighting against. As a friend said the night he passed, "a life dedicated to answering a simple question: who decides?"
Yeah, that's a classic! Did Justice Scalia think that certiorari was improvidently granted? Or did he think that the Americans with Disabilities Act (if that was the statute at issue) should have required a different outcome?
Peace,
Michael
I don't know about cert, but he definitely thought the ADA not only did not compel that result, but in fact foreclosed it. The essence of it is this -- the Court melded two different provisions, the first dealing with employers and protecting employees and the second with public accommodations and protecting customers, and used the "sweeping purpose of the Act" to fashion a remedy. The Court found that Martin was a "customer" of the PGA. Scalia said Martin was an independent contractor, and finding him to be a "customer" was absurd (he was right about that). He said since he is not an employee, the ADA doesn't cover him under Title I, and since he is not a customer the ADA doesn't cover him under Title III.
But the better argument, and the one I cite above, is that even if one found the ADA ought to apply, how does the Court fashion a remedy to determine what is and is not essential to a game with made up rules that are completely arbitrary? It's not the same as saying one must be able to see in order to be a motorcycle cop, but it's also not quite the same as saying one can still be a desk cop if one must sit at the desk in a wheelchair. That's because there are specific duties required of those jobs, and the Court can fashion a remedy by determining whether a reasonable accommodation is possible.
But in this case, what is a "reasonable accommodation" for a professional golfer? Let's say a woman wants to play on the mens' tour. Can she demand to hit from the ladies tees? May she use an otherwise illegal club? May she play with a handicap of, say, 10 strokes? How is that even judicially determinable? As Scalia said, his opinion was not that the PGA should not fashion a remedy for Martin. He noted even professional golfers differ widely on that question. The question was whether the ADA compels the PGA to fashion such a remedy, and barring one, whether the Court therefore could mandate one. He answered that, properly IMHO, in the negative.
