Now that Obama’s much anticipated ‘empathetic’ appointment to the Supreme Court has been revealed, one can be forgiven for feeling that one is perhaps witnessing the next step in the country’s transition from a nation ruled by laws to a nation subject to the arbitrary rule of judges. To be sure, this process has been underway for nearly 2 generations, and Obama’s announced search for ‘empathetic’ judges who will legislate from the bench can be seen as merely doing openly what Bill Clinton (and other Democrats) have done in secret. While generally not popular with the public in theory, it is an unfortunate fact that what we conservatives refer to as ‘judicial activism’ has become a mainstream judicial practice. While the public at large still currently appears to see judges as honest interpreters of the law (and Constitution), this image will likely be undermined by Obama’s actions and judicial choices.

Contrary to what may be supposed by the political class, an orderly society does not spring forth from laws, but from the public’s willingness to see those laws (and those who enforce and interpret them) as legitimate. If the public broadly comes to see a ‘law’ as nothing more sacred than an individual judge’s opinion, respect for the law will be diminished (and not easily rebuilt). A society that loses respect for the law is not one that can remain stable and free. Either society will start to break apart as legal anarchy begins to take hold (political instability), or the state must become extremely powerful in order to coerce compliance out of a citizenry that has lost respect for it (lack of freedom).

Obama’s choice for the Supreme Court, as well as his open search for judicial ‘legislators’, is pushing the U.S. further down a potentially dangerous road.