Marcus insists that the Court’s “behavior is so difficult to defend. The fault, dear Justice, is not in the public but among your brethren.” It is not particularly difficult to defend. The Constitution invests the president with the power to nominate new justices because he (with the Vice President) are the only nationally elected officials in our government. The intent was to allow the Court to change with the country with the new leaders selected by the public. Both Democratic and Republican presidential candidates (as well as senatorial candidates) have run on pledges to change the Court majority to change precedent.

For the justices themselves, their “behavior” is not “difficult to defend” when they keep faith with their oath to “faithfully and impartially” interpret the law. It is bizarre to argue that they should vote for some interpretation of the Constitution that they believe is wrong and unfounded just to preserve precedent. If that view had prevailed in the past, Brown v. Board of Education would have upheld the racist precepts of “separate but equal” in Plessy v. Ferguson. When it comes to fundamental rights, justices should faithfully interpret the Constitution.

For these reasons, I believe that it is the critics of the Court who are “missing the point” over the shifts in jurisprudence that comes with changes on the Court. There are good faith reasons to object to the Dobbs decision. Indeed, Chief Justice Roberts said in his remarks that such criticisms are not only appropriate but important in our system. What is inappropriate is to attack the integrity of the justices simply because you disagree with their judicial interpretations.