The Supreme Court Downloads a Software Update

The Supreme Court, in a bid to keep up in these digital days, is this week touting the installation of “newly developed software that will assist in identifying potential conflicts for the Justices.” The new gadget “will be used to run automated recusal checks by comparing information about parties and attorneys in a case with lists created by each Justice’s chambers.” The new system was developed in-house and “will serve in addition to existing” procedures.All well and good — as long as the new software is compatible with America’s constitutional hardware. Meaning the Constitution and the high court’s own precedent, which insists on the “duty to sit.” That’s the obligation of justices to hear a case unless they are absolutely disqualified from doing so. A different rule applies to every single other Article III judge, each of whom is required to recuse whenever his impartiality could conceivably be questioned.Chief Justice Roberts explored this obligation in the Nine’s Code of Conduct, promulgated in 2023. There he writes that “a Justice is presumed impartial and has an obligation to sit unless disqualified.” Unlike, say, on a circuit court, if a high court justice steps aside, there is no one waiting in chambers to replace him or her. A high bench shrunken by attrition presents a danger to due process. There is no bench at the uppermost tier of the federal bench. The Chief Justice writes in that Code of Conduct that “individual Justices decide for themselves whether recusal is warranted” by the law. That would seem to limit the role for the software to issuing, in the court’s own parlance, “advisory opinions.” Unless the software has downloaded the wisdom of Chief Justice Rehnquist, who reckoned that the “duty to sit where not disqualified” is “equally as strong as the duty to not sit where disqualified.”There is, Chief Justice Roberts writes, “no higher court to review a Justice’s decision not to recuse in a particular case.” Yet at least one famed circuit rider — Judge Edith Jones of the Fifth United States Appeals Circuit — is worried that Artificial Intelligence could be maturing into something like a court of final appeal. In a recent ruling she writes that the public must not “perceive that federal judges outsource our judgment to AI tools.”That wisdom, delivered in a footnote, came after a trial judge, Xavier Rodriguez, told the Journal that he leans on AI as part of his judging. Judge Jones, who was nominated to the federal bench by President Reagan, approvingly evokes Senator Charles Grassley’s remark that AI “must not be a substitute for legal judgment.” Even if the Supreme Court’s new mainframe spits out conflicts, say, the decision to step aside must be the justice’s to make The point is all the more salient as Democrats increasingly apply pressure to justices — particularly Justices Samuel Alito and Clarence Thomas — to step aside. As Chief Justice Roberts puts it, that approach can affect “the outcome of a case by selecting who among” the full roster of justices “may participate.” We grasp that the age of quills has given way to that of QWERTY. Even Claude, though, is trumped by the Constitution.

The Supreme Court Downloads a Software Update

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