That was a major factor in the Supreme Court's recent opinion in (BEGIN ITALS)PGA Tour v. Casey Martin(END ITALS). The court found that walking was not "fundamental" to the game of golf, which turned in part on the answer to the above question. (For constitutional scholars, the answer is: (B) a Big Mac.)
But the central point of the court's opinion is this: Its arrogance knows no bounds. The Supreme Court has now presumed to tell the PGA, Jack Nicklaus and Arnold Palmer what is "essential" to the game of golf.
Among the many "wrong turns" -- as the magnificent Antonin Scalia put it -- the court took on its way to total hegemony over recreational activity in America, it interpreted the Americans With Disabilities Act to apply to pro golfers. Taking an unconstitutional law to all-new unconstitutional levels, it found the PGA Tour is a "public accommodation" and Casey Martin is a "customer." Playing in the PGA is just like buying an ice cream cone.
Justice Anthony Kennedy has described the ADA as "a milestone on the path to a more decent, tolerant, progressive society" -- which tells you about all you need to know. Also a milestone on the path to a less free society. However indecent, intolerant and regressive the PGA's rules were before our philosopher kings barged in, they did not allow federal bureaucrats to dictate to private associations.
But the ADA hook was just absurd jurisdiction-grabbing. The court might as well have purported to be interpreting the ABM Treaty. After (BEGIN ITALS)Martin(END ITALS), it is difficult to conceive of any petty dispute that seven justices of the Supreme Court will deem themselves unqualified to resolve. Mommy sent you to bed without dinner? Take it to the Supreme Court!
I keep hearing what a wonderful fellow Casey Martin is. I'm evidently supposed to change my mind about a tyrannical decision if only I know the real man behind the oppression. He suffers from a disability, has a warm personality, is kind to animals and makes his own clothes! (No wait -- that's how my brother claims Mother used to describe his prospective blind dates.) Fine. Maybe Martin is all that and more. Unlike Hollywood movies, in real life, bad people usually aren't evil incarnate.
Whatever his other virtues, however, Martin did warm to the idea of taking freedom from his fellow Americans. He thought it was appropriate to ask the Supreme Court to intervene in his dispute with a private organization and rewrite the organization's rules. On account of their own disabilities -- a severe incapacity for rational self-perception -- seven Supreme Court justices took the bait.
Last December, The New York Times was worrying itself sick about the court losing its hard-earned "prestige" after (BEGIN ITALS)Bush v. Gore(END ITALS). But the PGA case, it nonchalantly put on the sports pages. (Both Justice John Paul Stevens and Sandra Day O'Connor have hit holes in one, the Times earnestly reported.)
This is a sports story like the Japanese internment was a story about new home-building in Idaho. The Times would put that in the Home section. In a nice touch, Justice "THIS DAY WILL LIVE IN INFAMY!" Stevens wrote the opinion in the golf case. He must have gotten over that concern about the prestige of the judiciary expressed with sound-bite perfection in (BEGIN ITALS)Bush(END ITALS).
It now seems preposterous that anyone ever thought the Supreme Court would not decide the election case. The least that can be said for the court's ruling in (BEGIN ITALS)Bush(END ITALS) is that it was interpreting real constitutional provisions about a federal election. This court will tell the PGA the rules of golf.
It only adds insult to injury that the court's decision in this case is hated by golfers everywhere. In its unerring capacity to create angry factional mobs from an otherwise peaceful populace, there is widespread loathing of the court's substantive ruling. Had the PGA changed the rule on its own, there might have been sotto voce griping. It takes a Supreme Court ruling to really tick off the whole country.
The Martin decision is a case study of why our judges go bad and theirs never do. To quote Justice Scalia in another case, "This is why Lord Acton did not say, 'Power tends to purify.'" The only difference between the Martin case and (BEGIN ITALS)Roe v. Wade(END ITALS) is the slaughter. Abortion, rules of golf -- whatever. Anyone's snit can now be decided by the Supreme Court. Our "evolving Constitution" has evolved from a constitution to abortion trimesters to the "fundamentals" of golf.