Punning on the #SCOTUS Green

June 10th, 2016

Tony Mauro has a delightful piece about the Chief Justice’s citation in U.S. Army Corps of Engineers v. Hawkes to a 1933 article about Peat and golf.

The late U.S. Supreme Court Justice Antonin Scalia once lamented in an opinion that “the paths of golf and government, the law and the links” sometimes cross, when in fact golf was none of the court’s business.

But Chief Justice John Roberts Jr., an avid golfer, could not resist mingling golf with law in a recent decision that did not get much attention.

The case was U.S. Army Corps of Engineers v. Hawkes, which involved both the Clean Water Act and the Administrative Procedure Act—two statutes that would seem far removed from the sport of golf.

But Roberts made a connection because the case was brought by three companies that mine peat in the bogs of Minnesota. And peat, it turns out, can be part of the soil mix that goes into golf course greens. Who knew?

That link, so to speak, was enough for Roberts to detour from facts relevant to the case. Gratuitously, he observed on page three of the opinion that peat can be used “to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.”

To back up his assertion, Roberts cited a 1933 article that appeared in a publication of the United States Golf Association (USGA.) The highly technical article, titled “Use of Peat and Other Organic Materials on Golf Courses,” actually portrays peat as a mixed blessing for golf courses, but never mind; it gave Roberts the hook to work golf into his jurisprudence.

The article closes with perhaps my most cringe-inducing pun yet:

But court scholar Josh Blackman, a vocal critic of judges who do outside fact-finding, was willing to give Roberts a mulligan: “This stroke was not par for the course for the eagle-eyed chief justice, who usually chips away at citations that are out of bounds.”