The Center for the Political Future hosted a panel discussion with legal experts titled “The Courts and the Future of Democracy” on September 29.
Moderated by Bob Shrum, Director of the Center for the Political Future at USC Dornsife, the discussion quickly centered on the Justice Department’s indictment of former FBI Director James Comey.
On September 25, the Justice Department charged Comey with making false statements to Congress and obstructing a congressional proceeding related to his 2020 testimony before the Senate Judiciary Committee.
The indictment alleges that Comey misled senators about authorizing an FBI official to share internal information with the press during the bureau’s 2017 handling of the “Russiagate” investigation. Prosecutors claim that by denying he permitted those disclosures, Comey obstructed congressional oversight into the leaks of sensitive investigative material.
CNN legal analyst Jeffrey Toobin dismissed the case as “the kind of document that looks like it was written by a first-year law student” and told the audience flatly, “this case will never go to trial.”
He described the prosecution as “malicious and vindictive,” noting that career DOJ prosecutors had refused to pursue charges they considered unsupported by evidence.
To illustrate these tactics, Toobin cited the dismissal of Marie Comey from a federal post, arguing that the Trump administration is “operating on a North Korean principle that an entire family should be punished for one person.”
USC Gould School of Law Dean Franita Tolson argued that the case’s significance lay less in its legal prospects than in its political symbolism.
“He’s not convicted of anything and nobody believes this,” she said, describing the indictment as a way for the president to assert “absolute authority over the Department of Justice.”
She warned that once the case fades from the headlines, Americans may slip into a “false sense of security” about the resilience of democratic institutions.
Emory University law professor Alexander “Sasha” Volokh situated the controversy within the broader context of executive power.
“What we are seeing is typical of the Trump administration,” he said, portraying the indictment as “more like press releases aimed at the modern movement.”
In his view, the episode was less about Comey than about a president testing whether he could exercise absolute control over the executive branch.
Shrum then asked whether the judiciary could function as a check in such a moment. Tolson, who described herself as a historian of Reconstruction, was skeptical.
She argued that while Americans often celebrate Brown v. Board of Education as a triumph, the Supreme Court’s 200-year history is more consistent with retreat from democracy than its defence.
“The Court has not been protective of democracy,” she said, suggesting today’s reality is closer to that longer trajectory than to moments of exception.
Volokh highlighted how much it depends on personnel. Shifts in the Court’s median vote, he explained, determine outcomes on abortion, affirmative action and presidential power.
Trump’s appointments, he added, had produced both ordinary doctrinal changes and unprecedented constitutional challenges, especially in the use of the emergency or “shadow” docket.
According to the Brennan Center, the Supreme Court has increasingly relied on brief, unsigned orders to resolve major disputes; a trend the panellists worried undermines legitimacy.
Toobin agreed, noting that in recent months the Court had issued “decisions that change American life in two or three paragraphs.” He argued that even when one agrees with the outcomes, the lack of reasoning “discredits the Court.”
As the discussion moved deeper into questions of judicial philosophy, Toobin argued that the conservative justices “are aligned with President Trump on executive power, on individual rights, civil rights, and voting rights. This is who they are and what they want to do.”
He said he sometimes wished the justices expressed themselves differently, but cautioned the audience not to expect “a crisis of conscience” from the current six-member conservative bloc.
Volokh agreed that there is significant overlap between the powers of presidents and the constitutional commitments of the justices they appoint.
“If you had a highly liberal president, you’d see the same kind of alignment in the other direction,” he said, though he added that Trump had been a particularly powerful “recruiter” for Democrats, reshaping what it means to be Republican.
Toobin and Volokh sparred over the “major questions” doctrine, which the Court used in 2022 to strike down an Environmental Protection Agency rule.
Toobin called it a doctrine “invented five minutes ago … just to invalidate environmental regulations,” saying it reflected his cynical view of how supposed doctrines Republican justices adhere to.”
Tolson joined to remind the audience that textualism and originalism themselves are not fixed constraints.
“We can’t treat anything as certain as long as people are people,” she said.