For three decades, it was impossible to think of the Supreme Court without thinking of Antonin Scalia. On the night of February 12-13, 2016, Justice Scalia died, but he will long be remembered.
For those of us who had the privilege of knowing Nino, as we called him, what will come to mind first are his human qualities. He was a delightful friend and colleague. He had a big personality; I think he filled every room he entered. He was charming, engaging, voluble, learned, witty, impatient, and nearly always very frank. On every occasion when the Court has met since his death, his absence has been palpable. The Justices have a tradition of toasting each colleague's birthday with a song. Nino had a fine voice, and he always led the singing. Since his departure, we have been out of tune.
Both within the Court and on the outside, Nino will be remembered for changing the way the Supreme Court works. His effect on oral argument was profound and almost immediate. When I was arguing cases in the Supreme Court just prior to Nino's arrival, many of the Justices asked few questions, but with Nino on the bench, oral argument was transformed. After a two-week argument session during his first term, a journalist counted up the total number of questions asked by each Justice. Nino, the most junior Justice, had asked 126 questions, more than 30 percent of the total. By contrast, Justice Blackmun had asked eleven questions, Justice Powell one, and Justice Brennan zero. (1) Today, there are so many questions that it is sometimes hard to get one in.
Nino also changed the tenor of our proceedings. Oral argument became a contact sport. Ever the professor, he approached oral argument like an old-time practitioner of the Socratic art. Every attorney who appeared before the Court could expect a sweat-inducing workout.
On the bench, Nino was formidable, but he was also entertaining. The Court reporters who prepare transcripts of our arguments include a note whenever the audience laughs, and every once in a while, someone counts up the number of times each Justice induces audience laughter. These surveys invariably identified Nino as the funniest Justice.
Nino also introduced a new opinion-writing style--sharper, cleaner prose, laced with memorable phrases. His majority opinions were lucid and to-the-point, but his distinctive voice emerges most clearly in his separate opinions, where he did not need to accommodate anybody else's preferences. These writings featured a...