A recent SCOTUS case with a golf reference....

[Steve_ Shaffer]

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 ancient sport is mentioned in 69 Supreme Court cases through history, though at least one reference appeared in a criminal case in which a golf club was used as a weapon.
But Roberts had to work hard to get golf into the Clean Water Act case.
“I am not sure where the court got the 1933 article,” said M. Reed Hopper of the Pacific Legal Foundation, who argued before the justices on behalf of the peat miners. The article did not appear in any of the briefs, and has not been cited in any other court decision.
But Hopper acknowledged that his clients sometimes sell their product to golf courses. “Peat reduces water consumption and makes the ground softer when players ‘hit the dirt,’” he said.
It is uncertain whether Roberts has benefited from the contribution peat has made to the enjoyment of golf. Friends and former law clerks confirm that Roberts enjoys golf. Irish Central, a publication for Irish-Americans, reported last year that at his vacation home in County Limerick, Ireland, Roberts “likes to play a round of golf or go see a hurling match” when he is in town.
His reference to the sport in Hawkes won praise from golf-loving lawyers like Glen Nager, a Jones Day partner who has argued 13 cases before the high court and also served as general counsel and president of the USGA.
It shows that “he shares the passion of other golfers for the traditions of the game,” Nager said, including “great challenge, play based in honor and integrity, and an opportunity for friendship and companionship with others.”
Connecticut lawyer Rob Harris, who blogs about golf law, was also “delighted to hear” that Roberts had joined the ranks of lawyers who find golf pertinent to their professional lives. “Golf is one of those things that captivate a small percentage of the population.”
Roberts’ citation of the 1933 article also showed that he does independent research outside the record presented in a case—a practice he has not always embraced.
“There is some controversy around it,” Roberts said at the conference of the U.S. Court of Appeals for the Fourth Circuit on May 25. “It is easy to say, ‘What is this? I’ll go online and see.’ But should that be part of the record?”
A mere six days later, Roberts was citing an 83-year-old agricultural treatise that no party had mentioned.
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.”





Read more: http://www.law.com/sites/almstaff/2016/06/10/chief-justice-roberts-putts-golf-reference-into-supreme-court-ruling/#ixzz4BaGcDZef

[David Sucher]

Nice post!
Thx