Marc M. Howard is professor of government and law and director of the Prisons and Justice Initiative at Georgetown University.
Responses to the U.S. Open women’s final between Serena Williams and Naomi Osaka quickly bifurcated into two angry camps: One claimed that Williams “broke the rules” and therefore deserved the consequences imposed by umpire Carlos Ramos that contributed to Osaka’s impressive victory; the other viewed the punishment as evidence of lingering sexism and racism in a sport that has a long history of both.
This disagreement is about more than tennis, or even sports. It connects with a much deeper American divide about policing and criminal justice, with strong undertones connecting to race and racism.
Those in the “rules” camp grimace and lash out at the suggestion that gender or race play a role in their thought process. They point out that the rules are clearly stated and apply to all players and that umpires in tennis or any sport do their best to enforce them fairly.
To them, Williams clearly violated the rules three times (receiving coaching, smashing her racket and verbally abusing the umpire, whom she called a “thief”). Ramos then applied the code of conduct, which calls for a warning first, followed by a point penalty and then a game penalty. In short, Williams simply lost her cool and has only herself to blame for the outcome.
Many have also piled on with examples from her history of previous explosions at umpires, presenting Williams as a “repeat offender” who has violated the rules before and is thus even more deserving of punishment.
In contrast, the pro-Williams side calls foul, insisting that she has been unfairly targeted because of her physical and moral strength as a player who openly and proudly represents women and will not stay silent or be intimidated by men. For years, she has endured racial slights — from baseless accusations of match-fixing with her sister Venus to occasional racist epithets and near-constant body-shaming — even if she is a public sensation who is revered in her new role as mother.
They also invoke previous bad calls from umpires against Williams, particularly the most egregious and inexplicable overrule in tennis history, which directly led to the camera-based challenge system on line calls. And they claim that it is surely no coincidence that Williams is reportedly the subject of “random” drug testing more than twice as frequently as any other player.
But both sides are missing a crucial dimension — one that ultimately bends in the direction of the pro-Williams camp. Just like the criminal-justice system, tennis and many other sports depend on the subjective discretion of neutral arbiters to apply a set of supposedly objective “rules.”
Ramos did indeed follow the code, and each of the three sanctions had some justification, thus satisfying the “rules” camp. But for two of the three violations (the racket smashing was unambiguous), he used his discretion to punish Williams for acts — coaching and heated exchanges with an umpire — that occur routinely in tennis but are seldom punished.
Within the criminal-justice system, the same principle of discretion also applies, with much more severe and damaging consequences on human lives than the outcome of a tennis match.
At every stage, criminal-justice officials regularly justify individual decisions based on their discretionary interpretation of a rule. When a police officer makes a “routine traffic stop” for a car that changed lanes without signaling, or decides to arrest someone found with recreational drugs, technically the decision is warranted — even if numerous other people commit the same “infractions” without any consequences. Prosecutors have tremendous discretion to decide, for example, whether to charge a child as an adult, add additional enhancements to press for a plea bargain or seek the death penalty. Judges often make discretionary sentencing decisions (recall the Stanford University swimmer case). And prison officials have almost full discretion in issuing disciplinary infractions and sending inmates to solitary confinement.
In all of these instances, one can always say, “Well, this person didn’t follow the rules,” and on an individual basis that may seem sufficient to justify the consequences. What gets lost, however, is that rules are rarely applied regularly, consistently or fairly.
Worse, in the criminal-justice area, these rules are without question applied unevenly, with overwhelming racial disparities at every stage. People of color are far more likely than their white peers to be arrested for the same behavior, charged for the same crime, sentenced to more time for the same conviction, sent to solitary confinement for the same activity and denied parole despite similar prison records.
Without diminishing Osaka’s level of play or achievement, and without excusing Williams’s behavior, the outcome of the U.S. Open may have been determined by an umpire’s discretionary decisions that were far outside the norm. Rather than fool ourselves about the universality of rules, we should question the vast and often unchallenged use of discretion in both sports and criminal justice.