There is a common debate that resurfaces whenever it is time to appoint the next Supreme Court justice. To some, humanism matters, because it is the real effects on humans that should be taken into account when interpreting the law. On the other hand, strict constructionists tend to believe the job of a judge is to apply the text of the law only as it is written, without regard to any external conditions. They leave no room for the empathy of Sonia Sotomayor.
I have recently been led to wonder, if it is indeed the written text of the law that governs, why then would we even need judges? Couldn’t Google do all the legwork at this point? I can see it now: a case comes to the docket, prosecution and defense attorneys feed their arguments into the search bar – include a couple keywords like abortion, immigration, and habeus corpus – and wait 0.32 seconds for Google to scan through centuries of laws and legal opinions…presto! Instant ruling based solely on the written text.
It may sound ridiculous, but such capability might not be that far-fetched. Google Scholar has already gone through the arduous process of posting full text legal opinions from U.S. federal and state district, appellate and supreme courts. And a team of computer scientists and journalism professors at Northwestern University recently developed a new software that allows computers to sift through data and automatically write news stories, without the need for any human authors.
Google co-Founder Sergey Brin once said in response to privacy concerns, “All we are doing is showing ads. It’s automated. No one is looking,” referring to the algorithms used in generating ads. This is all fine and dandy on the internet, where we would all rather not have any visible connection between search results and our personal search activities. But laws are immutably connected to the activities of real people, and for that reason we’d never allow an algorithm to write our laws and risk that some cold computer might write opinions that might land innocent people in jail or fail to protect the liberty of civilians. We rightly insist that justices be watching.
I think this idea is partly behind some of the apprehension surrounding Elena Kagan’s nomination. The New York Times profile of Kagan paints her as a cold, calculating machine, much like an algorithm. Each step in her career is framed as though guided by detailed instructions on how to reach the Supreme Court. Read this. Join the student paper. Study law. If not here, then there. Exclude terms like, “my opinion is…”
This is what so far has put people on edge. The thought of someone as rationally calculating as a mathematical equation is quite concerning to anyone who might believe in empathy, or who thinks someone’s actual opinions might matter when writing opinions. With the stakes so high, we shiver at the thought of someone being led blindly by instruction, like the enslaved ant unwittingly building the anthill.
But perhaps the law is the right place for ants. After all, we are a common law nation, whereby our laws are not single statutes, but really the mass accumulation of individual opinions piled up like dirt and twigs. No single opinion is designed to uphold the entire structure, nor does any single ant fully comprehend the shape of the hill being built or believe they have any out-sized role in ensuring its stability. They just carry the dirt in their mouths and drop it where they understand it must lay. The shape of the law becomes clear. Slowly.
I can support such caution on the court, as long it it is what Ezra describes as “a personality type” and not a life-long political move to hide the public from any of her real views. Because the ant who only wants to be queen – particularly the one without any experience writing judicial opinions – might just lay a shoddy foundation for the hill.
*I am far from a legal scholar, so your more informed comments are encouraged. Any reasoned opinion works too. No spam.