Chief Justice John Roberts is a Robot

Abstract

This paper examines the implications of the use of artificial intelligence in judicial decision making. Designed around a counterfactual intended to provoke questions about the nature of judicial decision making and legal reasoning, the authors ask what would happen if it were discovered that the Chief Justice of the United States Supreme Court was a robot. Does it matter that many landmark legal decisions were made by an artificial intellect? Centered on the contention that judges do more than simply follow a wide and unimpeded path cleared by legislators and the framers of the constitution, the authors challenge readers to ask questions about legitimacy and the rule of law in the context of a contested understanding of the role of judges.

These questions of legitimacy arise in three main areas: constitutional barriers, judicial fitness, and judging as a human endeavour. The authors find that the most fertile constitutional grounds for challenging an AI judge would be in the oath of office; on the other hand, a robot programmed to believe it is human cannot express the moral intent necessary to give meaning to a promissory act like swearing an oath. They also find that although an AI may be functionally able to perform the duties of a judge, it may not be able to follow rules and adopt the internal perspective necessary to meet the fitness requirements that are expected of human judges. Finally, the authors are skeptical of an AI’s ability to perform the inherently moral exercise of justification, which requires a judge to be a member of the community for which they adjudicate disputes. This paper is designed to examine the factors that come into play when considering the nature of judicial action, and to raise questions for the future of AI in the law.

Keywords: artificial intelligence, AI, judicial fitness, legal reasoning, ethics