With a wary eye over the future of the federal courts, Supreme Court Chief Justice John Roberts warned Sunday of the perils of artificial intelligence (AI) when deciding cases and other important legal matters.
His remarks came in the annual year-end report issued by the head of the federal judiciary, which made no mention of current controversies surrounding his court, including calls for greater transparency and ethics reform binding the justices.
Noting the legal profession in general is ‘notoriously averse to change,’ Roberts urged a go-slow approach when embracing new technologies by the courts.
‘AI obviously has great potential to dramatically increase access to key information for lawyers and non-lawyers alike,’ he said. ‘But just as obviously it risks invading privacy interests and dehumanizing the law.’
‘But any use of AI requires caution and humility,’ he added. ‘As 2023 draws to a close with breathless predictions about the future of Artificial Intelligence, some may wonder whether judges are about to become obsolete. I am sure we are not— but equally confident that technological changes will continue to transform our work.’
Roberts also summarized the work of the nation’s 94 district courts, 13 circuit courts and his own Supreme Court. Previous year-end reports have focused on courthouse security, judges’ pay, rising caseloads and budgets.
The chief justice’s predictions of the future did not include his own court’s caseload, as he and his colleagues are poised to tackle several politically-charged disputes in the new year, many focused on former president Donald Trump’s legal troubles and re-election efforts.
Election examinations
The Supreme Court has tackled its share of election fights over the decades — remember Bush v. Gore nearly a quarter century ago? — but 2024 promises to make that judicial drama look quaint by comparison.
First up could be whether states can keep Trump’s name off primary and general election ballots. Colorado’s highest court said yes, and now the U.S. Supreme Court is being asked to decide the extent of a 14th Amendment provision that bans from office those who ‘engaged in insurrection.’
State courts across the country are considering whether Trump’s role in 2020 election interference and the Jan. 6 Capitol riots would disqualify him from seeking re-election.
The justices are being asked to decide the matter quickly, either by mid-February or early March, when the ‘Super Tuesday’ primaries in 16 states are held.
In his leadership role as ‘first among equals,’ the 68-year-old Roberts will likely be the key player in framing what voting disputes his court will hear and ultimately decide, perhaps as the deciding vote.
Despite a 6-3 conservative majority, the chief justice has often tried to play the middle, seeking a less-is-best approach that has frustrated his more right-leaning colleagues.
But despite any reluctance to stay away from the fray, the court, it seems, will be involved in election-related controversies.
‘Given the number of election disputes it might be coming, a lot of them could be moving very quickly and will be very important to see what the court does,’ said Brianne Gorod, chief counsel at the Constitutional Accountability Center. ‘Sometimes the Supreme Court has no choice but to be involved in the election cases, because there are some voting rights and election cases that the justices are required to resolve on the merits.’
Already the high court is considering redistricting challenges to voting boundaries in GOP-leaning states, brought by civil rights groups.
That includes South Carolina’s first congressional district and claims the Republican-led legislature created a racial gerrymander. A ruling is expected in spring 2024.
The high court could also be asked to weigh in on emergency appeals over vote-by-mail restrictions, provisional ballots deadlines, polling hours, the Electoral College and more.
Just weeks before President Trump’s first House impeachment in 2019, Roberts tried to downplay his court’s consideration of partisan political disputes.
‘When you live in a polarized political environment, people tend to see everything in those terms,’ Roberts said at the time. ‘That’s not how we at the court function and the results in our cases do not suggest otherwise.’
But the court’s reputation as a fair arbiter of the law and Constitution has continued to erode to all-time lows.
A Fox News poll in June found just 48% of those surveyed having confidence in the Supreme Court, down from 83% just six years ago.
The Trump term?
Donald Trump faces separate criminal prosecution in four jurisdictions in 2024 — two federal cases over document mishandling and 2020 election interference; and two state cases in Georgia over 2020 election interference and New York over hush money payments to a porn star.
The prospect of a former president and leading GOP candidate facing multiple criminal convictions — with or without the blessing of the United States Supreme Court — has the potential to dominate an already riven election campaign.
The former president has filed various motions in each case, seeking to drop charges, delay the proceedings, and be allowed to speak publicly at what he sees as politically-motivated prosecutions.
The Supreme Court recently refused to fast-track a separate appeal, over Trump’s scheduled criminal trial scheduled to start the day before ‘Super Tuesday.’
Special counsel Jack Smith is challenging Trump’s claim of presidential immunity in the 2020 election interference case. The former president says the prosecutions amount to a ‘partisan witch hunt.’
While the justices are staying out of the dispute for now, they could quickly jump back in later this winter, after a federal appeals court decides the merits in coming weeks.
But the justices will decide this term whether some January 6 Capitol riot defendants can challenge their convictions for ‘corruptly’ obstructing ‘official proceedings.’ Oral arguments could be held in February or March.
More than 300 people are facing that same obstruction law over their alleged efforts to disrupt Congress’ certification of Joe Biden’s 2020 presidential election victory over Trump.
The former president faces the same obstruction count in his case, and what the high court decides could affect Trump’s legal defense in the special counsel prosecution, and the timing of his trial.
Look ahead
In the short term, the Supreme Court, with its solid conservative majority, will hear arguments and issue rulings in coming months on hot-button topics like:
– Abortion, and access to mifepristone, a commonly-used drug to end pregnancies
– Executive power, and an effort to sharply curb the power of federal agencies to interpret and enforce ‘ambiguous’ policies enacted by Congress
– Social media, and whether tech firms — either on their own or with the cooperation of the government — can moderate or prevent users from posting disinformation
– Gun rights and a federal ban on firearm possession by those subject to domestic violence restraining orders
Off the bench, the court last month instituted a new ‘code of conduct’ — ethics rules to clarify ways the justices can address conflicts of interest, case recusals, activities they can participate in outside the court and their finances.
It followed months of revelations that some justices, particularly Clarence Thomas, did not accurately report gifts and other financial benefits on their required financial disclosure reports.
The court in a statement admitted the absence of binding ethics rules led some to believe that the justices ‘regard themselves as unrestricted by any ethics rules.’
‘To dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long regarded as governing our conduct.’
All this reflects the delicate balancing act the chief justice will navigate in a presidential election year.
The unprecedented criticism of the high court’s work — on and off the bench — is not lost on its nine members.
‘There’s a storm around us in the political world and the world at large in America,’ Justice Brett Kavanaugh said this fall. ‘We, as judges and the legal system, need to try to be a little more, I think, of the calm in the storm.’
Some court watchers agree the court as an institution may struggle in the near term to preserve its legitimacy and public confidence, but time might be on its side.
‘By its nature, the court kind of takes a long-term view of things,’ said Thomas Dupree, a former top Justice Department official, who has litigated cases before the Supreme Court. ‘Even when we disagree with the outcome in a particular case, I have never had any doubt that these are men and women who are doing their absolute best to faithfully apply the laws and the Constitution of the United States to reach the right result.’