I am proud to name myself one of the seventeen Justices lucky enough to have served with Justice Scalia during his tenure with the Court. Much has been said these past few months about the mark he has left on our Court and on our country. Pages have been written of the contribution he made to textualist and originalist principles of review, of his captivating writing style. With this I wholeheartedly agree. But my story with Justice Scalia was shaped more by our shared passion for the substance of things. Justice Scalia would freely admit that he liked to "stir things up," and to say that some of his positions on substantive issues were considered controversial would not, I think, have been taken by him as an insult.
During his tenure with the Court, Justice Scalia made a name for himself as one of the most provocative figures on the Court. As the common saying goes--it is better to be looked over than overlooked--and that Justice Scalia's views have provoked, and continue to provoke, strong response within the legal community is a tribute to just how important and powerful Justice Scalia's presence has been in our current legal culture. Controversies like the ones Nino delighted in are also healthy: They help raise our awareness of how difficult it can be to identify and navigate the conflicts that we will all inevitably feel at times--as lawyers, as judges, or as individuals--in integrating our personal sense of morality with the norms of our profession and with the law.
His reputation was partly a product of his lively personality. He was consistently quick-witted and outspoken with his views, and sometimes even combative in his opinions and at oral argument. In particular, he used some of his most searing words when deciding constitutional questions that touch on those issues that currently vex us most as a country: topics such as euthanasia, abortion, gay rights, and the proper place of religion in public life.
Of course, Justice Scalia and I did not always agree on these most difficult of topics. But, I think the general public would be surprised to know just how frequently we did agree. By my count, we heard 430 cases together, and we ended up on the same side in 315 of them. Seventy-three percent is not inconsequential.
One area on which our views frequently overlapped was criminal law, and in particular cases involving the Fourth Amendment's protections against unreasonable searches and seizures. He and I often found common ground...