Artificial intelligence and the courts

5/12/2026

Barrels upon innumerable barrels of ink have graced the pages of court documents for many, many decades in the quest for American justice. Attorneys for both sides have marshaled their best arguments for their clients, hoping to convince a judge of the rightness of their position. 

In civil court it’s plaintiff vs. defendant, and in criminal court it’s prosecution vs. defendant. But the procedures are similar. The judge’s task is to decide which side has the better case.

Traditionalists maintain that the judge’s job is simply “to call balls and strikes.” That’s exactly the phrase John Roberts employed during the 2005 Senate committee hearing on his nomination by then-President George W. Bush to become Chief Justice of the U.S. Supreme Court. 

Roberts laid out the analogy: “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

For conservatives who look only to the Founders’ Constitution—so-called originalists or textualists—or to a relevant state constitution for the answer in a contested case, the process must be simple: just research what the original document says or implies to determine the proper judgment in a particular case, then rule on that basis. 

If that’s the way it’s supposed to be, modern technology may indeed supply a revolutionary answer. Artificial intelligence (AI) can go back to the actual wording of the Constitution, consider the available record of the Founders’ discussions on that particular subject, and also wade through all previous cases that relate to the one at hand. AI can research that in just a few seconds, infinitely faster than any collection of judges or judicial clerks ever could. And AI can then render the decision based on what the data says.

If that’s what a judge is supposed to do, as originalists claim, AI makes him or her obsolete. It’s the perfect way to call balls and strikes. Just have a court functionary plug the court briefs into a computer, ask for the judgment, and almost immediately the answer is forthcoming.

“Justice delayed is justice denied” is never heard again.

There are at least a couple of problems with that approach. In the first place, AI spits out information based on what it’s gathered in its instantaneous search. If the material it “reads” is false, then so is its response. And there is now a growing group of malevolent tech-savvy individuals who create false data, resulting in an erroneous AI response. In the real world, AI has been known to cite court cases that don’t exist.

In the second place, originalism itself has major weaknesses. One of them is that the Constitution, sort of like the Bible, can be used to argue for or against different positions. 

For instance, the Constitution’s preamble lays out the purposes for which the document was created. Six specific reasons are listed, including to “promote the general welfare.” Then one of the First Amendment’s five basic rights in the document is that Congress shall make no law prohibiting the free exercise of one’s religion. 

If free exercise of someone’s religion clashes with the people’s general welfare, and a lawsuit is brought over the issue, how does an originalist decide the case? Which constitutional provision is more basic? 

Examples of clashing court decisions on a single question are not hard to find. In 1896, the U.S. Supreme Court in Plessy v. Ferguson ruled that racial segregation of schools does not violate the Constitution. But in 1954 the Court, in Brown v. Board of Education, countermanded that decision and ruled that state-sanctioned segregation of education is indeed a violation of the 14th Amendment and therefore illegal.

Another example: in 1973, in Roe v. Wade, the Supreme Court decided that the Constitution’s due process clause of the 14th Amendment guarantees a pregnant woman the right to abort her pregnancy before fetal viability. Then in 2022, in Dobbs v. Jackson Women’s Health Organization, the Court reversed itself and ruled that abortion is not a constitutional right under the Constitution. The court turned legal decisions on abortion’s legitimacy over to the states.

In both cases the 14th Amendment played an important role in the various decisions: in the first instance, overturning school segregation, and in the second instance, legalizing abortion. How artificial intelligence would have decided those cases, and whether AI’s decisions would have been allowed to stand, would have posed huge problems for American constitutional scholars and the entire judicial system. 

For me at least, it comes down to a realization that AI would not be a dependable tool to lean on in judicial judgment, and that originalism and textualism in jurisprudence fall short of what’s needed for the American people. Judicial wisdom and understanding of modern American society constitute more dependable and more valid pillars of justice.