Justice_ What's the Right Thing to Do_ - Michael Sandel [97]
For the libertarian, the answer would depend on whether the workers had freely exchanged their labor for a wage: if they did, the work is just. For Rawls, the arrangement would be just only if the free exchange of labor took place against fair background conditions. For Aristotle, even consent against fair background conditions is not sufficient; for the work to be just, it has to be suited to the nature of the workers who perform it. Some jobs fail this test. They are so dangerous, repetitive, and deadening as to be unfit for human beings. In those cases, justice requires that the work be reorganized to accord with our nature. Otherwise, the job is unjust in the same way that slavery is.
Casey Martin’s Golf Cart
Casey Martin was a professional golfer with a bad leg. Due to a circulatory disorder, walking the course caused Martin considerable pain and posed a serious risk of hemorrhaging and fracture. Despite his disability, Martin had always excelled at the sport. He played on Stanford’s championship team while in college, then turned pro.
Martin asked the PGA (Professional Golfers’Association) for permission to use a golf cart during tournaments. The PGA turned him down, citing its rule prohibiting carts in top professional tournaments. Martin took his case to court. He argued that the Americans with Disabilities Act (1990) required reasonable accommodations for people with disabilities, provided the change did not “fundamentally alter the nature” of the activity.33
Some of the biggest names in golf testified in the case. Arnold Palmer, Jack Nicklaus, and Ken Venturi all defended the ban on carts. They argued that fatigue is an important factor in tournament golf, and that riding rather than walking would give Martin an unfair advantage.
The case went to the United States Supreme Court, where the justices found themselves wrestling with what seemed to one a silly question, at once beneath their dignity and beyond their expertise: “Is someone riding around a golf course from shot to shot really a golfer?”34
In fact, however, the case raised a question of justice in classic Aristotelian form: In order to decide whether Martin had a right to a golf cart, the Court had to determine the essential nature of the activity in question. Was walking the course essential to golf, or merely incidental? If, as the PGA claimed, walking was an essential aspect of the sport, then to let Martin ride in a cart would “fundamentally alter the nature” of the game. To resolve the question about rights, the court had to determine the telos, or essential nature, of the game.
The Court ruled 7–2 that Martin had a right to use a golf cart. Justice John Paul Stevens, writing for the majority, analyzed the history of golf and concluded that the use of carts was not inconsistent with the fundamental character of the game. “From early on, the essence of the game has been shot-making—using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible.”35 As for the claim that walking tests the physical stamina of golfers, Stevens cited testimony by a physiology professor who calculated that only about five hundred calories were expended in walking eighteen holes, “nutritionally less than a Big Mac.”36 Because golf is “a low intensity activity, fatigue from the game is primarily a psychological phenomenon in which stress and motivation are the key ingredients.”37 The Court concluded that accommodating Martin’s disability by letting him ride in a cart would not fundamentally alter the game or give him an unfair advantage.
Justice Antonin Scalia disagreed. In a spirited dissent, he rejected the notion that the Court could determine the essential nature of golf. His point was not simply that judges lack the authority or competence to decide the question. He challenged the Aristotelian premise underlying the Court’s opinion—that it is possible to reason