This week on This Is Democracy, I welcomed legal analyst and author Jeffrey Toobin for a timely and provocative conversation about the evolving relationship between the U.S. judiciary and the presidency—particularly through the lens of presidential pardons. We began with a powerful poem by Zachary that captured the essence of our legal system’s fragility: it relies not on force, but on a shared faith that judicial decisions will be respected. As Jeff pointed out, the rule of law depends more on cultural norms and collective trust than on any enforcement mechanism, which makes it both resilient and precarious.
Our discussion focused on the constitutional oddity of the presidential pardon power—an unchecked authority that has been used for mercy, for politics, and, increasingly, for personal advantage. Jeff’s new book, The Pardon: The Politics of Presidential Mercy, examines how this tool has evolved from George Washington’s unifying amnesty during the Whiskey Rebellion to Donald Trump’s controversial and transactional use of pardons to reward allies and punish adversaries. We explored how the use of this power offers a window into presidential character: Abraham Lincoln used pardons to reconcile a divided nation, while Andrew Johnson used them to return Confederate leaders to power—two very different visions of justice and leadership.
We also addressed the broader question of judicial independence. Chief Justice John Roberts, Jeff argued, seeks to maintain the appearance and substance of an independent judiciary while often aligning with the legal philosophy of Trump-era conservatism. Despite the court’s conservative tilt, there remains a deep-rooted belief across much of the country in the rule of law and the need for a neutral arbiter—even as recent events have strained that faith. The podcast concluded with a critical question: how can ordinary citizens influence the judiciary? Jeff emphasized that while we can’t lobby judges directly, we can shape the courts through our votes—especially by paying attention to presidential and senatorial candidates’ judicial philosophies and commitments.
This episode reminds us that democracy is not self-sustaining. If we want courts that uphold rights, we must elect leaders who value justice over raw power. The judiciary is one of our last lines of defense, and its strength depends on our engagement, our vigilance, and our belief that law can still bend toward justice.
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