The horror isn't AI, it's what we're doing without it

Justice Arthur Gilbert recently asked ChatGPT to write two paragraphs in his style. He read them and found the result "not bad." But he spent the rest of his Daily Journal column expressing his deep dismay about it. "The horror! The horror!" he wrote, borrowing from Conrad.

Let me make sure I have this right. A retired appellate justice tested an AI tool, confirmed that it produced competent legal prose, and concluded that the correct institutional response is panic. He proved the technology works, then argued we should be afraid of it.

Justice Gilbert's column is entertaining--he is a good writer! But I have a fundamentally different take. 

Every objection Justice Gilbert raises to AI in the courthouse applies with the same force to law clerks and staff attorneys. Clerks and staff attorneys draft bench memos and tentative rulings every day. Judges review, revise and sign them. American courts have functioned like this for over a century and no one has ever called it an abdication of judicial authority. The judge remains the decision-maker. If Justice Gilbert never permitted a clerk to draft language he subsequently adopted, he is an outlier of one. The function he objects to, a tool preparing analytical work for a judge's review, is a function courts have relied on since the first clerk sat down at the first desk. I assume Justice Gilbert's real objection is to the clerk's form. That is an aesthetic preference, and it is one that the litigants waiting for justice aren't focused on.

Justice Gilbert served on an appellate court, with law clerks and time. He had the luxury of co-teaching a course on legal philosophy for new judges, drawing on Shakespeare and the humanities, and writing warmly about it decades later. That is a beautiful career and I am confident he made a difference by his service. I mean that sincerely. But for the people who end up in courts don't want judges (or lawyers, frankly)--they only want their problems solved.

Last year, Gallup reported that American confidence in the judicial system collapsed to a record-low 35%. The decline cuts across every political division. For the first time ever recorded, confidence has fallen below 50% among both those who approve and those who disapprove of national leadership. Gallup places the scale of this collapse alongside Myanmar under military rule and Venezuela in economic freefall. Americans now trust the honesty of elections more than they trust their courts. That statistic alone should arrest every judge in America. The judiciary's authority rests entirely on public confidence. At 35% confidence, the institution has moved past decline into crisis.

It's not going great for judges either. The human toll to judges is worse than most people understand. Nearly half of judges report symptoms of secondary traumatic stress. One in five meets criteria for a depressive disorder. Thirty percent of judicial officers meet DSM-5 criteria for PTSD. Forty percent report chronic fatigue. A third cannot sleep. These are rates that would trigger an institutional emergency in any other profession. In the judiciary, they are treated as the cost of doing business. The judges I know carry caseloads that would have been unimaginable a generation ago, absorbing the hardest problems people in their communities face, day after day, with fewer resources than ever. The system is grinding them into dust. Justice Gilbert is worried about the soul of judging. But the judges he's worried about are worried about surviving the week.

As difficult as their work is, the judges I know do the job because they are committed to public service. They didn't sign up for the position to hone their craft, or their intellectual satisfaction, or to showcase their elegant prose. And the judges I have worked with would not measure the health of the judiciary by the level of fulfillment of the judges. The courts are for people who need justice: the single mother whose summary judgment motion has been sitting in a pile for 14 months; the small business owner whose contract dispute has no hearing date; the defendant whose postconviction motion has been waiting for two years because nobody has the time to read it. These people need their judge to read their motion.

But after four industrial revolutions, the legal profession has not updated its operating system. As a result, in courthouses across this country, judges with intelligence and commitment are burdened with caseloads that make it impossible to give each case the attention it deserves.

Justice Gilbert conflates a tool that helps a judge with one that replaces it. AI will not displace judges. When the steam engine made coal more efficient, coal consumption rose. When spreadsheets automated calculations, the number of accountants grew. Economists call this Jevons' Paradox: making a resource more productive increases demand for it. A judge who can resolve motions in days instead of months becomes more essential, not less. Courts that move faster restore public confidence, clear backlogs and create demand for more judicial resources. We will not see unemployed judges in our lifetimes. We will see judges who can give each case the attention it deserves.

In the meantime, I worry about different horrors: a court system with 35% public confidence, judges with PTSD rates that rival combat veterans, and a system that forces every trial judge in America to choose between doing the job well and doing it at all.

The AI software Justice Gilbert names in his column, Learned Hand, is named after the judge who once said that the spirit of liberty is the spirit which is not too sure it is right. It is a spirit of humility, of openness, of willingness to question whether the way we have always done things is the way we must continue.

Editor's note: Los Angeles County Superior Court announced its partnership last month with Learned Hand; the Michigan Supreme Court began using the technology in 2025.