Loss of judicial sight? The impact of assistive AI technologies on judicial perception — beyond the question of discretion

Recent scholarship and judicial guidelines for the ethical use of technology have devoted considerable attention to the question of how the use of assistive AI technologies may impact – and potentially constrain or degrade – judicial discretion as an inherent factor characterising the human element of the judicial process. Drawing on perception-centred approaches to morality, this article addresses the largely overlooked question of how the use of these technologies may affect judges’ arguably more foundational and pervasive capacity for judicial perception. Judicial perception is an intrinsically valuable, multifaceted legal-ethical capacity that enables judges to register and value the salient facts of the cases that come before them. We develop our argument through an analysis of three hypothetical cases in which judges make use of three different AI tools to support some aspect of their decision-making. After interrogating potential opportunities for their use to support or enhance judicial perception, we conclude that these technologies are more likely to systematically steer judges’ attention away from the particulars of each case, distort their legal-ethical vision, or further entrench their already biased vision. This could lead to failures in – or the gradual degradation of – judicial sight, with consequences for the way in which judges exercise their discretion. To the extent that this loss of judicial sight occurs across the judiciary and over time, we anticipate three potential impacts on the justice system more broadly: a less-discussed form of judicial deskilling; diminished public perceptions of procedural fairness; and a loss of legal-ethical meaning.