Friday, October 05, 2012
Public Opinion on Replacement Refs and the Supreme Court
Thanks to Dan and the rest of the regular Prawfs crew for inviting me back.
I have been a hockey and baseball official since 1991, and I want to use my initial post on this guest-stint to discuss a parallel between judging and sports officiating. As most know by now, the NFL's lockout of its officials ended last week after replacement officials -- whose performance had been criticized extensively since the start of the season -- made a particularly bad call that cost Green Bay its game against Seattle on September 24.
That said -- and I am certainly not defending the replacements' calls -- the NFL's key miscalculation when locking out the officials was not the poor quality of the replacements. The key miscalculation was in not understanding the way that the public would perceive the replacements' incompetence.
Fans rarely perceive sports officials as providing their teams a benefit. Rather, calls in favor of their teams are "right" or at least arguable, and in any event aren't dwelled on. Calls against their teams, however, are tremendous injustices. The result is that a controversial call makes one team far more upset than it makes the other team happy.
Accordingly, the replacement officials never had a chance.Nobody was ever going to think they did well. If they did a perfect job, they would be perceived as no better than the regular officials. And when they inevitably made mistakes (or even simply when their decisions were controversial), fans would speculate that the "real" officials would have made better calls.
It strikes me that the same phenomenon is at work with the judiciary. Most people rarely see the courts as providing them anything positive. A "victory" is when the court agrees with the position that the litigant claims has already existed; a loss makes the status quo worse for that party.
And this effect is true, I think, regardless of ideology. Conservatives, especially originalists, become upset by non-originalist interpretations that tend to result in politically liberal outcomes. But they are not similarly pleased by originalist interpretations, which they perceive as neutral. By contrast, liberals see Warren-Court-era decisions as the status quo. They therefore fear conservative retreat from those precedents and perceive liberal decisions not as "victories" but as the status quo's survival.
There is a saying among sports officials that we do a good job when we make both sides mad at us, because both sides are never going to be happy. As the Supreme Court opens its term with speculation about whether there are still hard feelings about the healthcare case, I wonder if the Court, too, will inevitably find itself disappointing everyone.
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