Casey Martin: Nice Guy Wins, Dumb Lawsuits to Follow

Judicial second-guessing of private decisions is sometimes necessary. But this wasn't such a case.

Jack Nicklaus, Arnold Palmer, some current professional golfers, the PGA, and Washington Post sportswriter Sally Jenkins say that walking a golf course, and thus conquering fatigue, is an essential part of PGA Tour competition. Disabled golfer Casey Martin, many other pros, and New York Times sportswriter Dave Anderson say otherwise.

Here we have an interesting question about which reasonable people disagree. (For the record, I'm with Martin on this one—the PGA should have allowed him to use a cart.) Who is to resolve it for us? The pros? The PGA? Its paying customers?

Of course not. The ultimate answers to such questions come from our all-wise federal government—specifically, the Supreme Court. Taking a characteristically expansive view of its powers under the Americans With Disabilities Act, it ruled on May 29 that Martin has a right to use a cart because "the essence of the game has been shot-making," not walking, and because the rare circulatory disease that has withered Martin's right leg would otherwise prevent him from competing.

Next year, perhaps, the courts will tell us whether pro golfers with bad backs, or sprained ankles, or babies on board must also have carts; whether the holes must be enlarged to accommodate golfers with very bad eyes; whether cross-eyed 12-year-old baseball players (I was one once) must be allowed four strikes; and whether would-be professional ballet dancers must be free from discrimination on grounds of obesity.

The ultimate answers to most of these questions would probably be no: After all, the Justices are nothing if not reasonable. And Justice John Paul Stevens made it quite clear in his opinion for the Court that a lawsuit demanding the enlargement of golf holes from three to six inches "might"—might!—involve the kind of "fundamental alteration" of the competition that no court should impose. Nobody will be inconvenienced by the myriad lawsuits that PGA Tour vs. Martin will inspire excepting those defendants who deserve to lose—and those who encounter trial judges or juries less enlightened than Stevens, and those (perhaps more numerous) who are forced to cave in because they can't spare a few thousand dollars (or a few hundred thousand, or more) in legal fees to fend off unwarranted claims.

This is a decision to warm the compassionate heart. Martin, who turns 29 on June 2, is a likable guy with one of the longest drives in pro golf. (He averaged 288.3 yards last year.) Only a churl could be indifferent to his struggle to play at the highest level despite a degenerative disease that will one day force doctors to amputate his leg. The PGA is not the most sympathetic of defendants. Millions of duffers use carts every time they play. The Court's two most avid golfers, the 81-year-old Stevens and 71-year-old Sandra Day O'Connor—who shot a hole in one last December—sided with Martin. So, even, did William H. Rehnquist, the conservative, sometimes crabby, 76-year-old Chief Justice, who has a bad back and prefers poker.

Only the most-unbending conservatives—Antonin Scalia (who prefers a good cigar) and Clarence Thomas (who pumps iron)—dissented. The famously vituperative Scalia got carried away, as usual, trashing Stevens for "Kafkaesque" and "Alice in Wonderland" reasoning reminiscent of George Orwell's Animal Farm. (Sportswriter Jenkins outdid him: "Sure, you can play pro golf without walking 18 holes—if you have a cart. And you can be a Supreme Court Justice without thinking, too—if you have a staff of clerks.")

Lighten up, guys. It's only a game.

The game of life, Scalia might retort. And the larger argument underlying such cases is about when the rules of that game should be determined through the trench warfare of litigation rather than through private ordering, free markets, and the decisions of us individuals and of the private corporations and organizations that we create, patronize, work for, depend on, and (often) curse.

Judicial second-guessing of private decisions is, of course, sometimes necessary to rectify gross injustice. The classic example is the pervasive, systematic injustice of the American apartheid regime that civil rights laws were originally adopted to dismantle. But now the courts are busy refereeing more quotidian "civil rights" disputes: whether kids with families affluent enough to hire expensive learning-disability experts have a right to extra time on standardized tests; whether a 17-year-old's alcoholism entitles him to stay on his high school varsity basketball team after being arrested for drunken driving; whether (as a federal judge in New Jersey held) medical boards should be barred from looking into doctors' histories of alcoholism, drug abuse, or mental illness; how many crude jokes and cutting comments a lifeguard should have to endure from her supervisors and co-workers before she can sue the city that employs her (and ultimately its taxpayers) for sexual harassment; whether (as a California jury found) an actress hired to be a bikini-clad vamp on Melrose Place has a right to keep the job after becoming pregnant and gaining 47 pounds; whether (as the Equal Employment Opportunity Commission once claimed) the Hooters restaurant chain's preference for buxom waitresses to titillate customers violates the civil rights of male would-be waiters; and whether (as a federal jury found) the preference by the Cock of the Walk chain for swashbuckling waiters to bolster its 19th-century riverboat theme violates the civil rights of female would-be waiters.

These are real lawsuits—all of them. The problem is not who wins or loses, but how we play the game. We play it by subjecting defendants (mostly corporations and big organizations such as the PGA) to the burden, and all consumers and taxpayers to the costs, of harassing (as well as of justifiable) lawsuits and to the oversight of judges whose decisions sometimes have more to do with their political predilections than with any widely shared notion of justice.

The most general consequence of this proliferation of lawsuits, says New York lawyer-author Philip K. Howard in his new book, The Lost Art of Drawing the Line, is that "social relations in America, far from steadied by the law's sure hand, are a tangle of frayed legal nerves. Any dealings in public-whether in hospitals, schools, offices, or in the ebb and flow of daily life-are fraught with legal anxiety.... Legal fear has become a defining feature of our culture." When it comes to the ADA, adds journalist-author Walter Olson, "no well-advised employer or business should behave as if its exposure ... is anything other than open-ended, unpredictable, and highly dangerous." The PGA is one of the more fortunate defendants: Casey Martin was suing only for the right to ride in a cart, not for the big bucks.

By what standard are judges to decide future lawsuits seeking waivers from the rules of various games? As Scalia observes: "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." These are matters of tradition that we have managed in the past to resolve without going to court.

Stevens points out that this decision does not give Martin an unfair advantage because, even with a cart, he will endure more fatigue than able-bodied competitors who must walk. If Stevens were head of the PGA, such commonsense, ad hoc reasoning would make perfect sense. But when offered as a basis for upholding a lawsuit, it raises more questions than it answers. Should a 40-year-old pro who must compete against 25-year-olds with more stamina also have an offsetting right to ride in a cart? To a traveling mulligan? And what are lower courts to make of Stevens's suggestion that even if a court-ordered exemption from the rules of the game did give a disabled plaintiff a bit of a competitive advantage, it would be of little consequence because "it is impossible to guarantee that ... an individual's ability will be the sole determinant of the outcome"? Why, Stevens notes, some golfers will encounter trickier wind conditions than others, and even "a lucky bounce may save a shot or two."

The subjectivity of such all's-fair-if-we-say-it-is reasoning "guarantees," as Scalia stresses, "that future cases of this sort will have to be decided on the basis of individualized factual findings. Which means that future cases of this sort will be numerous, and a rich source of lucrative litigation." Courts could be kept busy for years, for example, deciding whether it would confer an unfair advantage to grant a waiver of the most basic rule of baseball—three strikes and you're out—to a disabled plaintiff who claims that he or she needs four or five strikes to level the playing field. So bring on the lawyers and the expert witnesses.

Far-fetched? Tell it to the folks who have already been successfully sued by the parents of the 9-year-old boy afflicted with cerebral palsy for refusing—for fear of injuries—to let him play in their soccer league with the assistance of a metal walker. And the ones who have already been on the losing end of federal court rulings that theft, belligerence, and violence on the job may signal protected disability.