This past week, Ketanji Brown Jackson was confirmed as a justice of the United States Supreme Court. Her confirmation was hailed as a milestone, and she as a groundbreaker. Judge Jackson is now an icon, a celebrity of sorts, which for me, is all a little strange. I have known Judge Jackson since she was a young lawyer, still defining her way in the profession (if I may call it that). She was always bright and curious, personable and friendly. But iconic? Not back then.
There was once a greater mystery and an elusiveness to the Supreme Court. The members of the Court weren't well-known public figures, if they were known at all. Their confirmation hearings were not must-see-TV. They worked silently behind the walls of the stately and majestic Supreme Court building. They spoke in written opinions, largely indecipherable to the public, often sprinkled with unnecessary latin. There were procedural vagaries and impenetrable "doctrine." But for someone like me who grew up in the 1960s and 70s in a liberal household, the Court was always seen as heroic: a liberator of those unjustly barred from the mainstream of American life; a guardian of civil and human rights; an institution prodding the country to find its better angels and to bend the arc of the moral universe towards justice. It all added up to both obscurity and yet undeniable reverence.
That all has changed for me, slowly but steadily over time. It hasn't just been that the Court's membership has changed ideologically. The obscurity of the Court began to lessen -- because of C-SPAN, cable news, my own education, and lots more -- and law school made the Court's opinions more approachable. And with that, the mystery began to diminish, and the decisions often seemed far less principled.
A big moment in this transformation came in May 2001, about six weeks after Tiger Woods won his second of five Masters' green jackets. The Court then handed down its decision in PGA Tour v. Martin. I was a mid-career lawyer. And I was a committed and not-yet-flourishing golfer.
For those who don't recall the case, Casey Martin was a talented young golfer from Oregon and oddly enough, a teammate of Tiger Woods' at Stanford. Martin had a degenerative circulatory disorder that prevented him from walking golf courses. No one disputed that his disorder constituted a disability under the Americans with Disabilities Act of 1990 (ADA), a law signed proudly -- and incredibly -- by George Herbert Walker Bush, a patrician golfer if there ever was one. President Bush was ironically known for speed golf, where he practically ran after his ball and completed rounds in two hours. Bush's grandfather, George Herbert Walker, had been President of the United States Golf Association in 1920. The Walker Cup, the trophy contested in odd-numbered years by leading male amateur golfers from the United States, Great Britain and Ireland, is named for him.
When Martin turned pro and entered the "Q-School," a multi-stage qualifying tournament to determine PGA Tour eligibility, he made a request, supported by detailed medical records, for permission to use a golf cart during the tournament. The PGA Tour refused, and Martin filed suit under the ADA.
Eventually, the case made its way to Supreme Court. The Court ruled for Martin. And in doing so, it took for itself the responsibility of arbitrating the rules of golf.
The ADA is rather simple in its mandate --
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or ac- commodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
The law is clear that "discrimination" includes the failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford individuals with disabilities equal treatment. The law requires us all to make reasonable accommodations for the disabled. Bravo! The law makes an exception, though. No reasonable modification must be made if doing so "would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”
The Court's ultimate decision in Casey would rest on whether using a golf cart during a tournament would fundamentally alter the game of golf. And it decided, 7-2, that it wouldn't. "The Court is not persuaded that a waiver of the walking rule for Martin would work a fundamental alteration [of the game]. The use of carts is not inconsistent with the fundamental character of golf, the essence of which has always been shotmaking. The walking rule . . . is neither an essential attribute of the game itself nor an indispensable feature of tournament golf."
This past week, beginning on the day that Judge Jackson was confirmed to the Court, Tiger Woods competed in The Masters. The tournament was his first appearance in competitive golf since a February 2021 car crash, in which he was very seriously injured and nearly lost his leg to amputation. Before the tournament, Woods made clear that he was hitting the ball great and that his ballstriking would be enough to compete in -- if not win -- the tournament. His only worry was whether he could walk the golf course. Here's his interview a few days before the tournament began --
Did it even cross Tiger's mind to request a cart for the tournament? I suspect that it crossed the minds of some of Tiger's team. But I also suspect that the question was dismissed in seconds. For even if the Supreme Court thought that walking the course is not essential to the game of golf, it is certainly essential to the essence and brand of Tiger Woods.
"To say that something is 'essential' is ordinarily to say that it is necessary to the achievement of a certain object." So said the dissent in the Casey case. Tiger Woods' "object" is clearly bigger than winning this one tournament, even if it is The Masters. He is a global, billion dollar brand that at its core is about overcoming disadvantage, relentless physical perseverance, and intimidating strength and resolve. Tiger could no more take a cart out into Amen Corner during the tournament than wear Footjoys instead of Nike golf shoes.
Actually, anyone who has carried a golf bag around a hilly track on a warm summer's day knows that walking a golf course can be strenuous and can impact your play. But is it an essential part of the game? As the dissent in Casey reminded us, this is really a silly question. "[S]ince it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), 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. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport . . ." It's a game. The dissent went on to note that many indeed, "consider walking to be the central feature of the game of golf -- hence Mark Twain’s classic criticism of the sport: 'a good walk spoiled.'"
Throughout my legal career, I have been grappling with the reality that sometimes fidelity to the law leads to results that don't feel good. My instinct has always been to hew close to the law, because isn't it the case that law is all about not doing what you would otherwise choose to do, or doing what you would otherwise choose not to do? I have seen legal giants, though, stray from such fidelity, sometimes leading to great peril for the country, but candidly, sometimes leading to greater, if not unexpected, justice. My struggle continues.
I pray for Justice Jackson -- and all the other justices too: to have the wisdom and fortitude to know when fidelity to the text and to the law is right, even when it may feel bad; and to know when to stray just a bit for greater justice. And I pray for Tiger Woods, too: for a more complete recovery and for one more Sunday charge.
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