- The Washington Times - Friday, June 8, 2001

At least for this spring, Casey Martin is the most famous professional golfer whose name isnt Tiger Woods.

Mr. Martin, you will recall, has a rare leg ailment that prevents him from walking an 18-hole course, as required by the PGA Tour. When the organization refused to bend its rules to allow him to ride a golf cart, he sued under the Americans With Disabilities Act. The Supreme Court now has agreed with Mr. Martin: A golf cart he shall have. The nagging question is whether the law actually compels that result.

Justice Antonin Scalia, joined by Justice Clarence Thomas, argued that it didn´t. Justice John Paul Stevens, writing for the majority of seven, contended that it did. The disagreement between the two sides arises from starkly different approaches to the judicial task at hand — that of interpreting a law of Congress.

PGA Tour vs. Martin asked the court to decide whether the ADA, as Justice Stevens put it, "protects access" to tournaments "by a qualified entrant with a disability." To answer that question, Justice Stevens cited Title III of the ADA, which forbids discrimination against disabled persons in public accommodations and defines a "public accommodation" in 12 ways, the last of which encompasses "a gymnasium, health spa, bowling alley, golf course or other place of exercise or recreation."

But Justice Stevens argued not just from this text but also from "the expansive purpose" of the ADA, as he discerned it from the legislative history. He quoted extensively from hearings and bill reports, including two saying the 12 definitions of public accommodation "should be construed liberally." Suffice to say, Justice Stevens absorbed that instruction by regarding Casey Martin as a Title III "customer" of "competition" when he plays professionally — someone therefore protected by the ADA.

Justice Scalia disagreed with that conclusion because he believes that, in interpreting a statute, courts should be bound by its text and structure and never its legislative history. Indeed, unlike Justice Stevens´ opinion, his contains no references to hearings, bill reports, speeches or the like.

Just the law. And the law, as Justice Scalia read it, doesn´t make pro golfers "customers" of their tournaments. Those who are "customers" protected by the ADA, he said, are those who come to watch the golfers play.

The remaining question in the case was whether the PGA Tour had violated Title III´s anti-discrimination rule by refusing to make a "reasonable modification" i.e., exempt Mr. Martin from its rule forbidding use of a golf cart. Title III provides that a covered entity must make such a modification unless it "fundamentally" alters the nature of what it offers. The PGA Tour argued that bending the no-golf-cart rules for Mr. Martin would fundamentally change its tournaments. Justice Stevens disagreed.

The merits of the disagreement are less important than the fact that Justice Stevens believed he and the court could substitute its judgment for that of the PGA Tour. Justice Scalia took hilarious issue with the majority´s attempt to explain why the tour was wrong to have a rule requiring that players walk the course. His serious point is this: "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 rule-maker … deems it to be essential."

Ultimately, PGA Tour vs. Martin is less about a disabled pro golfer than about judicial power. Justice Scalia´s approach to interpreting a statute seeks to limit the exercise of that power so that it doesn´t effectively enact what the legislature may not have intended. Anyone can say anything in bill reports or on the (often empty) House or Senate floor, in Justice Scalia´s view, but it is the law the text and how it is set forth that Congress votes on. And the law is as binding on judges as it is on the rest of us.

Justice Stevens is less concerned about constraining judicial power. His more expansive approach to statutory interpretation obviously is shared by other members of the court, though they don´t always form a majority in a given case. Indeed, sometimes Justice Scalia collects a majority for an opinion insisting on text and structure only.

The justices whom President Bush most admires are the two dissenters in the Martin case, Antonin Scalia and Clarence Thomas. If (assuming the opportunity occurs) he selects a justice who agrees with them on how a judge should interpret a statute, the court will become more restrained a welcome prospect indeed.

Terry Eastland is publisher of the Weekly Standard.

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