According to Talking Points Memo, at today's Sotomayor confirmation hearing, Senator Cornyn (R- TX) had prepared statements that were a rant about judicial activism:

The Supreme Court has even taken on the job of defining the rules for the game of golf. (If you're curious, the case is PGA Tour v. Martin from 2001). Some people call this "judicial activism." Whatever you call it, it's pretty far from enforcing the written Constitution that the Framers proposed and the people enacted.

Except that the U.S. Supreme Court didn't decide Martin based on some unwritten constitutional provision like Cornyn suggested.  In fact, the Court didn't decide it on any constitutional grounds at all.  Instead, the "rules of golf" were re-written by an Act of Congress called the Americans with Disabilities Act.

Here's the actual decision in Martin v. PGA Tour.

In it the Court clearly decides the issue, not on constitutional grounds, but because an Act of Congress prohibits the denial of a reasonable accommodition to disabled semi-pro golfers.  In fact the decision reads like a strict constructionists dream:

The phrase "public accommodation" is defined in terms of 12 extensive categories,24 which the legislative history indicates "should be construed liberally" to afford people with disabilities "equal access" to the wide variety of establishments available to the nondisabled.25

It seems apparent, from both the general rule and the comprehensive definition of "public accommodation," that petitioner’s golf tours and their qualifying rounds fit comfortably within the coverage of Title III, and Martin within its protection. The events occur on "golf course[s]," a type of place specifically identified by the Act as a public accommodation. §12181(7)(L). In addition, at all relevant times, petitioner "leases" and "operates" golf courses to conduct its Q-School and tours. §12182(a).

In fact, while the Casey decision has been derided by conservatives, it was a 7-2 decision with only Thomas and Scalia dissenting.  Largely unreported by the media, the decision also noted that the NCAA granted Martin such reasonable accommodations as a collegiate athlete which cut heavily against the PGA's arguments that making a disabled player walk the golf course was a necessary component for competitive golf rendering the partial use of a cart an "unreasonable" accomodation.
The Supreme Court didn't re-write the rules of professional golf, Senator.  Congress did!

Originally posted to ohdemvoter on Mon Jul 13, 2009 at 01:49 PM PDT.

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