You’re watching a soccer game: It’s USA versus Germany, World Cup knockout round. It’s early in the match, about 13 or so minutes in, and Germany are awarded a corner kick. Pretty normal stuff. Well, there’s some tussling and janking around in the box, a pretty normal big mess. But the referee blows his whistle—normal enough, and then the stadium announces that VAR is going to take a look.
VAR, or Video Assistant Referee, is the name of a technology and procedure for looking at contested calls on the field. In a box, several referees look over several angles of footage, slow and fast motion, and come to an agreement if a call on the field should stand or if a different decision should be made.
Anyways, after an agonizing 5 minutes of VAR looking over footage, they award Germany a penalty kick. For those watching at home, the commentators/announcers will then talk about what they see and perhaps what the call was for. The producers of the program will show viewers all kinds of angles and slow motions. Maybe it was this player—nope, there was no contact there. Maybe this player? Hard to tell. Or it could have been this other player. Again, hard to tell. Commentators cry foul—”I don’t see any contact here, no idea where this penalty came from.”
People in the stands, without the benefit of the commentators and replays, they either shrug and say there must have been something there, or they start screaming obscenities at the referees. Viewers at home, get angry and post on their favorite social that once again they have been robbed by VAR (everybody gets robbed by VAR, although not equally it seems).
It’s one of the most frustrating experiences in being a soccer fan, just having no explanation whatsoever regarding questionable calls. There is at least one sport that gets this right (for all its other faults—and there sure are plenty), American football. Every call gets explained by the referee over the loudspeaker. “Holding, offense, 5 yard penalty, first down.”
So it may not surprise you that soccer leagues have started trialing a similar thing: having the referee announce the result of the VAR call and the rationale for it. It’s a good idea and I hope it takes off.
Just yesterday, the Supreme Court made a VAR call, saying that President Trump can go ahead and fire a huge number of employees at the Department of Education. And like VAR, they did so without explaining anything about what happened or what their rationale for the decision was. And this isn’t just a one-time thing; it’s not even a trend: it’s common. Too common:
The Court is supposed to explain itself. It has to explain itself. But instead it’s just doing “law” without saying what the law is. The Court’s reasoning is supposed to inform the lower courts what the rationale is so they can go ahead and do their own judging.
In our democracy, we are supposed to look to the Court for what the law means. And we should have the benefit of at least pretending to have a good faith view of their reasoning and impartiality. Sure, it has never truly been thus, but the illusion is one of the tenuous ties that bind the country together. But, without providing any explanation, I can only give them the worst faith possible: If you are not going to explain yourself, I will be led to infer the worst possible reading. And that—that the Court is in the tank for a aspirationally dictatorial regime—is a dangerous sentiment for me, or anyone, to have. It means the Court no longer has any legitimacy and the republic is falling apart.
This is not an exercise in law; this is an exercise in power. And there may be no going back.
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