WASHINGTON — Frustrated critics of Supreme Court Chief Justice nominee
John Roberts Jr. complained that he dodged straight answers on their pet
issues, which after the Senate hearings of Sept. 13 — 14 notably omitted
Indian law. But the self-possessed nominee gave a clear picture of the way
he would like to run the court.

His model was not so much his professed mentor, the late Chief Justice
William Rehnquist, nor several other modern jurists whom he praised
profusely. It appeared from several extended descriptions to be none other
than the great 19th century Chief Justice John Marshall.

These signals are important for Indian country, which has as much at stake
in the make up of the court as anyone within the United States, and may
have more. Like Marshall, Roberts would become chief justice at a
relatively young age. (Marshall was 45 when appointed; Roberts is 50.) He
could expect a very lengthy tenure. (Marshall served 34 years.) And like
Marshall, he would seek to mold the court into a collegial body that spoke
as often as possible with one voice.

Democratic strategists are said to be accepting the apparently inevitable
confirmation of Roberts and preparing for a major fight over the
still-to-be named successor to Justice Sandra Day O’Connor. (Roberts was
originally named to replace the supposedly more moderate O’Connor, but was
bumped up to a chief justice nomination after Rehnquist passed away on
Sept. 3.) But their fight might already be over.

If Roberts achieves his stated goal, he would merge any new appointee into
an eventual court consensus. In one of his more revealing answers, he
bragged to the Senate Judiciary Committee that his current venue, the U.S.
Court of Appeals for the District of Columbia, decided most of its cases
unanimously or nearly unanimously.

On Indian law, for instance, he already has been able to bring nearly every
member of the court around to his point of view. In State of Alaska v.
Native Village of Venetie Tribal Government, which he argued as a private
attorney, he prevailed with a unanimous decision. In City of Sherrill v.
Oneida Indian Nation of New York, his influence was evident in an 8 — 1
opinion written by Justice Ruth Bader Ginsburg, supposedly the court’s most
liberal member.

The Supreme Court owes much of its prestige and power to Marshall’s ability
to unite its members behind major decisions from 1801 to his death in 1835.
He transformed the court from an afterthought to the main arbiter of the
Constitution. Historians credit Marshall’s powerful logic and his personal
persuasion. (During his tenure, the justices lived in the same Washington
boardinghouse.)

Roberts showed a keen sense of the internal dialogue needed to produce the
same result. In one of his most animated moments, he described to Sen. Jeff
Sessions, R-Ala., how the justices reached a decision. After receiving
briefs and hearing an hour-long oral argument, the justices meet in
conference and eventually take a vote, he said. One judge is assigned to
write the opinion. But the process doesn’t stop there.

“Quite often,” he said, “or maybe not quite often, but often enough, the
justices find out that, as they try to write a particular opinion,
different problems come up; it’s not writing as they thought it would. And
sometimes they have to go back and revisit the case because the judge —
the justice — assigned the opinion decides that it should come out the
other way or there should be a different reason, a different basis for the
decision.”

“The finished opinion is circulated to the other justices with the hope
they will send the reply, ‘Please join me.’ That’s just the jargon the
justices use. It means ‘Please join my name to your opinion.’

“And it can obviously get to be a very complicated process as the memos fly
back and forth,” he said.

“Often — maybe too often — there is not total agreement and somebody will
write a dissent and send that around and others will join that.”

Or, he said, they could write a concurrence: “‘I can’t agree with your
reason, but I agree with the result, and so I’m writing separately to give
you my reasons.’ And the balance changes. Somebody can write a concurrence
and, all of a sudden, they’ve got five votes and it’s the majority. And the
original majority becomes the concurrence. But the analysis is done — and
this has been my experience on the Court of Appeals as well — a very high
level.

“And if you had the experience, as I know every judge and every justice
has, of having your original view changed when you read either the other
side’s brief in a case after reading the opening brief, or had your view
changed as a result of the discussion at conference, or had your view
changed when you tried to write the opinion one way and it came out the
other way, then you appreciate the significance of that process.”

In the last generation, the Supreme Court has been less and less able to
reach a consensus. Major decisions, such as the affirmation of tribal
sovereignty in U.S. v. Lara, have come in plurality opinions, with
concurrences pieced together for a majority.

This splintering continued even under Rehnquist, even though Roberts
praised his court management. “I think a big part of the legacy that he
leaves,” Roberts told Sen. Lindsey Graham, R.-S.C., “is a Supreme Court in
which all of the members respected and admired him because of his fairness
in administering the court and conducting the important responsibilities
like managing the conference and assigning opinions.”

Roberts left little doubt that his self-professed “modest” style would be
used to put together a court “that spoke as a curt” rather than as
individual justices. This was Marshall’s achievement. What remains to be
seen, however, is whether the Roberts court would live up to Marshall’s
record of at least relatively defending tribal rights.