The Responsibility to be Bold

What can we learn about decision-making from the Supreme Court?

Discovery is expensive.  To gather a team and procure a boat and set sail across the seas.  To hack through the jungles of the Amazon, swatting flies and taking samples of plant leaves.  To return and synthesize the enzymes of those leaves, testing them against a host of maladies and hoping—just hoping—that one out of a hundred, one out of a thousand, even—is effective at treating a disease.  It’s an expensive and time-consuming proposition, so it makes sense that once you actually do discover something—a plant that treats breast cancer, for example—you’d want to protect your right to turn all of that work into some measure of success and profit.  Surely you can patent the drug, maybe even the method of treatment and delivery, but can you patent the plant leaf itself?  

That’s the question justices at the Supreme Court have been mulling over this month in a trial on gene patents that’s expected to define the future of the medical industry.  Are genes “a product of nature” or a “human-made invention”?  According to current law, companies can and do patent genes, meaning that any researcher who wants to explore this aspect of the human condition must first pay a price to the discoverer of that gene.  This makes basic research expensive for general scientists, retarding other discoveries—but as one Justice asked: “Why would a company incur massive investment if it cannot patent?”  

It’s a complex issue, with broad-reaching effects on the future of science, medicine, business, and basic health—just the kind of issue that the Supreme Court was designed to decide.  The problem, though, is that it doesn’t seem to want to decide.  The New York Times headline says it all: “Justices Seem Wary of Bold Action in Gene Patent Case.”  As a result, the court could very well make a narrow ruling, one that applies to this specific case, rather than to the industry as a whole.  It’s not an uncommon tactic for the court to take.  Just a few weeks ago, similar headlines swirled around the court’s gay marriage cases, with some observers noting that the court looked like it might lean towards a narrow ruling that applied only to California.  What can we make of this wariness for bold decisions?  

If they have this unprecedented power to affect change, to shape the future, to actually be heard in the debate—why would they shudder from boldness?  After all, isn’t boldness not only the special privilege, but the special responsibility of the court?  To get to the answer, it’s worth looking at how the court comes to its decisions:  

Courts represent some of the oldest decision-making bodies in society, and the way that they operate is very distinctive: researching issues, gathering multiple perspectives, listening to competing arguments, debating amongst themselves, and then finally voting and explaining their particular reasoning.  It’s a process of discovery—just like the scientific method; only instead of discovering scientific truths, it’s aimed at discovering legal truths, moral truths and ultimately, personal truths.  A process for discovering what they think about an issue.  In a recent interview, Justice O’Connor noted just how unique the court was as a government branch—not because of the wisdom of its decisions, but because of the honesty: every decision it makes has an explanation that says ‘here’s what we were thinking on this.”  The President isn’t required to explain the step-by-step reasoning of every decision, nor is Congress.  Nor, for that matter, are most executives, or journalists, or individuals.  

It makes you wonder what the world would look like if everyone did.  Show me your thirty page ruling on why you decided to go to college.  Or why you decided to buy a new car.  Or why you decided to go out on your bike this Saturday instead of meeting up with friends.  Show me your ruling on getting married.  So many decisions don’t lend themselves to 30 pages of meticulous reasoning, or 30 hours of reading briefing books and months of discussion and debate.  But that doesn’t mean that many decisions wouldn’t benefit from this level of scrutiny.  How much better might our choices be, and how much more comfortable would we be with them?  

It’s easy to scoff at the thought: who would want to look at life through such cold, calculating eyes, reducing matters of passion and preference—matters often of the heart—to this academic exercise?  Except a quick look at any courtroom will show that the process is anything but cold and passionless.  Though rulings strive for fairness, they are far from the ideal of objectivity we call for in “fair-and-balanced” reporting.  A judgement by its very nature is unbalanced, it’s a decision, a choice—and often a binary one: guilty or not guilty, plaintiff or defendant, right or wrong.  Just because you write down the factors that influenced your decision doesn’t mean those factors are cold and passionless—or even that they would make sense to someone else.  What matters is that they make sense to you.  

It’s not an easy process.  If you applied it to every decision, you might be frozen in indecision.  Burdened by the complications of competing arguments, you’d have trouble even getting out the door in the morning.  Last month, when Sandra Day O’Connor said that all of the justices have lunch together, Jon Stewart joked about what it must be like trying to get everyone to decide on take-out: Italian or Chinese food, pizza or egg rolls?  It’s clear that the court’s decision-making process isn’t designed for these kinds of everyday choices—instead, it’s built for the bold decisions, like gene patents and gay marriage.  But there’s an inherent problem here, too:  

The process is too good.  It’s so thorough, so adept at uncovering complications and competing interests and factors, that it brings to attention the fact that every issue is unique.  Every question is its own equation.  And few—if any—should be decided by broadly-defined, boldly-declared blanket principles.  This is the fundamental paradox of the Supreme Court.  Their job is to make bold decisions.  But their process for discovering issues is so good it calls into question the wisdom of bold decisions.  This sucks for the court, but it’s a useful revelation for the rest of us.  

It suggests that every decision has so many complicating factors that we should—at the least—list them out, understand where they came from, engage competing perspectives and try to build a working model for how they interact.  It also suggests that broad principles like: “I never like to wake up early on Sundays” or “I’m never going to purchase a foreign car” or “I will always vote Democrat” probably won’t serve every occasion well.  In fact, they may actually blind us to more meaningful choices.  

Broad principles are useful in organizing our values, but we shouldn’t confuse them with the values themselves: they’re really just shortcuts that take the place of actual thinking.  Oh, which color car do I want?  Well, red is my favorite color so I’ll buy a red car on principle.  Should we get married?  Well, I always liked blondes, so yes, let’s tie the knot.  Should I go out on the boat today?  Well, I enjoy thunderstorms, so why not?  Broad principles poorly applied have led to plenty of poor choices, from used cars to divorces to Coast Guard rescues—and the more broad principles you have, the more likely you are to apply them in the making of poor choices.  But having too few broad principles isn’t good either.  It can paralyze you, leading you down a road of endless research and discovery, unable to take decisive action.  

So what’s the proper balance?  Something in between the Court’s 30 page decisions and our 30 second ones—between carefully considering every choice and following the familiar path of precedence.  After all, discovery is expensive and time-consuming, whether you’re hacking through the jungles of the Amazon or  How, then, should the court rule?  Like the rest of us, it has to be bold and considered...but not all the time.  Yes or no, plaintiff or defendant, guilty or not guilty—these decisions are secondary.  Ultimately, the most important question is: is this one of those times?