Michael Showalter has posted “Mere Machines”: Why Originalism Requires Robotic Judging (Forthcoming SMU Law Review) on SSRN. Here is the abstract:
In 1776, Thomas Jefferson argued that judges are “mere machines.” This statement captures the founding generation’s conception of the judicial task. From Edward Coke to Montesquieu to William Blackstone to Alexander Hamilton to John Marshall, the founding era’s governing legal tradition taught that judges do no more than mechanically apply the law to reach a case’s correct answer. Judges find the law, the Founders consistently emphasized, they do not choose it.
Under originalism, that original understanding of the Article III judicial power controls how federal judges must adjudicate today. Theorists leveled sustained criticism against the Framers’ beliefs in the twentieth century, but their objections are irrelevant to the question of original understanding.
The original understanding of the federal judicial power has major implications for AI’s role in adjudication. If machine adjudicators become able to consistently reach correct decisions with well-reasoned opinions, they will be the Founders’ platonic ideal of a judge. Do not overread that sentence—it is a theoretical claim premised on a hypothetical. Practical objections about AI’s shortcomings are a category mistake. But the theoretical claim undoubtedly has enormous real-world implications, both now and as the technology develops.
If you dislike the notion of robotic judging, you are not the first. Just know that you stand opposite our Founders.