AI to Make Originalist Historical Analysis Easier, US Judge Says

A federal appeals court judge believes artificial intelligence could help courts decide cases through an originalist lens by researching how words or phrases were used historically.

Speaking at a Federalist Society event Monday at the University of Chicago Law School, Judge John Bush of the US Court of Appeals for the Sixth Circuit said the originalist approach to interpreting text “is consistent with, and indeed will thrive” with advancements in AI.

Originalism is a legal philosophy that calls for judges to interpret constitutional provisions as they would have been understood when drafted. It’s been used to reach major rulings by conservative judges, including the Supreme Court decision overturning the constitutional right to abortion.

Currently, it’s “highly laborious and time consuming” work to review every use of a word or phrase in a given historical period, said Bush, an appointee of Donald Trump. But he said AI could “make the job of determining word meaning and usage much easier.”

Bush’s remarks come as courts grapple with how and whether to respond to the advent of generative AI services like ChatGPT that create content in response to user prompts.

Chief Justice John Roberts made the rise of AI a feature of his year-end report released Dec. 31, when he said judicial work “will be significantly affected by AI.”

Use of AI by lawyers has led to publicized incidents of errors submitted to courts, including a case in a Manhattan federal court when a lawyer submitted an AI-created brief with fake case citations in litigation against an airline.

Some federal courts and judges have adopted or proposed orders requiring lawyers to disclose if AI was used when drafting a brief. These orders have drawn some criticism in the legal community for being too vague and dissuading attorneys from using technology in beneficial ways.

Bush suggested the technology could, if it had a sufficiently comprehensive database of historic writings, show a judge how a particular constitutional provision would have been understood at the time it was ratified.

Such a database could also draw on personal letters and other materials to show how language was understood by the general public, not just the drafters, he said.

“Perhaps judges may rely on AI for assistance—a form of expert opinion if you will,” Bush said. “For instance, one could argue that it would be permissible for a judge to use AI analysis of statistical probability that a word or phrase had a particular sense or meaning in a particular historical period.”

In his remarks, Bush acknowledged that AI services “are not there yet,” citing instances where AI has hallucinated information to answer a question.

“Much of what I’ve said today may not come true. But I do sense that we’re entering a new era of human history, a new enlightenment period if you will,” he said.