Professor Michael McConnell, director of the Stanford Constitutional Law Center, joined the Law School last year after serving as a judge on the U.S. Court of Appeals for the 10th Circuit since 2002. Known for his work on issues of religious freedom and as a veteran litigator in cases argued in the U.S. Supreme Court, McConnell again appeared before the court this spring, representing the Christian Legal Society in a case against the University of California's Hastings College of Law. The school had denied official support for the student group because it required that its members adhere to Christian tenets that forbid conduct including homosexuality. McConnell sat down with Stanford to discuss current topics involving the court.
At the risk of oversimplifying, is this essentially a one-person Supreme Court, that person being Justice Anthony Kennedy, '58?
I think that's an exaggeration. There are a number of issues where the court does not split along the usual 5-to-4 lines. But they do [split 5-4] quite a lot, and in some of the higher-salience cases. And Justice Kennedy is the principal swing justice; so yes, he certainly has influence way beyond any other one justice.
Some people are calling him the second most powerful person in the United States.
[Laughing] I don't know what Joe Biden would have to say about that. [Kennedy's] importance will grow as a result of Justice Stevens stepping down, because the custom is for the senior justice in the majority to assign the [writing of the] opinion. Whenever the chief justice is in the majority, he is automatically senior, but the others are arranged depending upon how long they've served on the court. Justice Scalia will be the second-most senior, and then comes Justice Kennedy, so that in any case where Justice Kennedy agrees with Chief Justice Roberts and presumably the other conservative justices, he will not be assigning an opinion. But in any case where he agrees with the four more liberal justices, he will be assigning the opinion for the majority, which presumably means he'll assign a lot of those to himself, or at least exercise some leverage with respect to those assignments.
And I doubt that that would ever cause a justice to vote differently, but it might lurk in the background of his mind that if he goes with the more liberal justices, he is in a position to control the content of the opinion in a way he would not otherwise be able to do. How an opinion is written is often almost as important as, can be even more important than, how (the decision) actually comes out.
How important, then, is the eventual judicial temperament of Elena Kagan, if confirmed?
I think every justice added to the court changes the temperament and the character of the entire court. I think that justices who are either more extreme substantively or who are more abrasive in terms of their personality sometimes have the effect of causing the justices in the middle to shift a little bit the other way. So an addition of a strident, very left-wing justice might well have the effect of conservatizing the court by inducing Anthony Kennedy to be more likely to be in opposition. Elena Kagan is not that. She is indeed the opposite of that.
She is a very appealing personality, knows how to get along with people she doesn't necessarily agree with, is witty and pleasant to be around and, although I would expect that she will be on the liberal wing of the court, is not anybody's idea of an extremist and will, I think, work very well with someone like Justice Kennedy.
A great deal has been made of the court's 5-to-4 decision allowing corporations and unions to spend freely on political ads.
I think it has been treated politically as if it was more surprising and a bigger decision than it in fact was.
For almost every purpose you can think of, corporations have always had the same free speech rights as everyone else. That includes a great swath of politically significant speech like lobbying, for example. What we're talking about in that case is a very narrow slice of campaign law, which is in that never-never land between contributions on the one hand, which can still be regulated, and pure issue-oriented speech, in which corporations have always enjoyed perfectly even rights with anyone else. So this narrow window where issue advertising is associated with a candidate for office, and within the 30 days prior to an election, is all that the case is really about. And whether that's going to have dramatic impacts either in the real world or on future doctrine, it's very hard to tell.
Unions engage in that kind of speech very heavily, corporations much less so—and for very good reasons having to do with corporate self-interest: Most corporations do not in fact want to be associated with one political candidate or the other, because it hurts their business.
Looking forward, are there cases that look particularly interesting?
Well, interesting and important are two different questions. Oftentimes they have small cases that have a lot of interest to them because they are at the intersection of different doctrines or they present an entirely different look at some area. That doesn't necessarily mean they change a whole lot of people's lives.
Looking back, over the last three or four years, I think the most consequential decisions have been the Guantanamo habeas decisions and probably Massachusetts v. EPA, holding that greenhouse gases are a pollutant within the meaning of the Clean Air Act. Those two decisions make a great deal of difference.
And pending decisions?
I'm somewhat tempted to say that my case, the Christian Legal Society v. Martinez, is one of the most interesting of the term. I think the case could help to shape how the nation confronts culture war issues—about which people of goodwill passionately feel differently. [It could shape] whether the basic model that we'll operate on is that private groups can reach their own judgments in their own way and participate fully in public life, or whether those who are in a minority at any particular place—and it might be advocates of one side in San Francisco and advocates of a different side in West Virginia—can be excluded through the use of various devices.
Editor's note: On June 28, the Supreme Court ruled against McConnell's client, the Christian Legal Society.
