Born in New York City, John Hart Ely graduated from Westhampton Beach High School in 1956 and Princeton University in 1960 with an A.B. summa cum laude and Phi Beta Kappa and from Yale Law School with a LL.B. magna cum laude in 1963, where he was elected to the Order of the Coif and was the Notes and Comments Editor of the Yale Law Journal. As a summer clerk at Arnold, Fortas, & Porter, a Washington, D.C. law firm, he assisted Abe Fortas in the landmark case of Gideon v. Wainwright, writing a first draft of a brief on behalf of Clarence Earl Gideon, a Florida drifter who had been tried and convicted without a lawyer. In the fall of 1963, Ely trained with Company A of the United States Army's Military Police School at Fort Gordon, Georgia. Ely served as the youngest staff member of the Warren Commission, which investigated the assassination of President John F. Kennedy. He went on to clerk for U.S. Supreme Court Chief JusticeEarl Warren, whom he considered a hero, and to whom he dedicated his landmark book, Democracy and Distrust. As a clerk for Warren during the 1964 Term, Ely authored the landmark decision Hanna v. Plumer. Joining the faculty of Yale Law School in 1968, and moving to Harvard Law School in 1973, Ely wrote several influential law review articles, including a highly critical analysis of the Supreme Court's decision in Roe v. Wade in an article entitled "The Wages of Crying Wolf," published in the Yale Law Journal, wherein he argued that the Court's decision protecting abortion rights was wrong "because it is not constitutional law and gives almost no sense of an obligation to try to be." Ely went on to serve as dean of Stanford Law School from 1982 to 1987, and remained on the faculty until 1996. Prompted by his love of scuba diving, he visited the University of Miami School of Law in 1996. Discovering he liked the city and the faculty, he chose to stay and became the first holder of the law school's first endowed chair, named after Richard A. Hausler. Ely was there when he died of cancer, aged 64.
Scholarship
In his 1973 article titled "The Wages of Crying Wolf," Ely criticized the Supreme Court's decision in Roe v. Wade. While Ely personally supported the availability of abortions, he argued that Roe v. Wade was not a jurisprudentially sound decision, because it was untethered from the constitution's text, understanding and structure, and was not protecting a politically vulnerable group. Ely agrees that a right of privacy can be inferred from various provisions in the Constitution, but saw no reason why it would include a right to abortion, why that right would be fundamental, and why the countervailing interests of protecting the fetus is not a sufficiently compelling interest that justifies government regulation.
Ely's most notable work was his 1980 book titled Democracy and Distrust, which was one of the most influential works about American constitutional law. In the book, Ely argues against "interpretivism" of which Hugo Black was an exponent, "originalism" advanced by Robert Bork, and "textualism" advanced by Antonin Scalia, by contending that "strict construction" fails to do justice to the open texture of many of the Constitution's provisions; at the same time, he maintains that the notion that judges may infer broad moral rights and values from the Constitution is radically undemocratic, whether the "moralism" of Ronald Dworkin or the libertarian Richard Epstein. Instead, Ely favors a mode of constitutional interpretation known as "political process theory." Ely argued that the Supreme Court should interpret the Constitution so as to reinforce democratic processes and popular self-government, by ensuring equal representation in the political process. He argues ejusdem generis that the Constitution's unenumerated rights are procedural in nature rather than substantive, thus protecting rights to democratic processes but not rights of a substantive nature. Justice Stone's Footnote Four from United States v. Carolene Products Co. is a chief inspiration for Ely's theory of judicial review. In her recent book on Hans Kelsen, Sandrine Baume identified Ely as a significant defender of the "compatibility of judicial review with the very principles of democracy." Ely was listed alongside Dworkin as one of the foremost defenders of this principle in recent years.
