John Hart Ely

John Hart Ely (December 3, 1938 – October 25, 2003) was an American legal scholar.

After graduating from Westhampton Beach High School in 1956, he enrolled at Princeton University, majoring in philosophy and earning a Bachelor of Arts, summa cum laude, with Phi Beta Kappa membership in 1960.

He then attended Yale Law School, where he was the notes and comments editor of the Yale Law Journal, graduating in 1963 with an LL.B., magna cum laude, and membership in the Order of the Coif.

While still a third-year student at Yale, Ely became a summer clerk at Arnold, Fortas, & Porter—a Washington, D.C. law firm.

There, he assisted Abe Fortas in the landmark case of Gideon v. Wainwright, writing a first draft of a brief on behalf of the plaintiff, Clarence Earl Gideon.

Ely had been tasked with doing the basic research for the case, writing under pressure to produce a set of legal memoranda including a 25-page paper titled "Application, Ambiguities, and Weaknesses of the Special Counsel Rule" that examined the application of Betts v. Brady in state courts.

After law school, Ely served as the youngest staff member of the Warren Commission, aiding its investigation into the assassination of President John F. Kennedy in 1963.

From 1964 to 1965, Ely clerked for Chief Justice Earl Warren of the U.S. Supreme Court.

As a law clerk, Ely drafted the majority opinion in the landmark decision Hanna v. Plumer; he considered Warren his hero, later dedicating his landmark book, Democracy and Distrust, to him.

Ely studied at the London School of Economics as a Fulbright scholar following his clerkship.

Upon returning to the United States, he spent some time as part of the Military Police Corps and, despite being overqualified for the job, took a modest position as a public defender in San Diego.

He was a professor of law at Yale Law School from 1968 to 1973, Harvard Law School from 1973 to 1982, Stanford Law School from 1982 to 1996, and at the University of Miami Law School from 1996 until his death.

In 1968, Ely joined the faculty of Yale Law School.

For five years, he served as a professor at Yale before moving to teach at Harvard Law School in 1973—holding the school's first chair in constitutional law.

During this period, he wrote several influential law review articles, including his 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. For a brief period, he took a year's leave to serve as general counsel to the U.S. Department of Transportation and spent a year at the Woodrow Wilson International Center for Scholars of the Smithsonian Institution.

In 1973, Ely's article entitled "The Wages of Crying Wolf: A Comment on Roe v. Wade" was published in the Yale Law Journal.

The article was a vociferous criticism of the Supreme Court's decision in Roe v. Wade which had given a constitutional basis for a right to abortion.

Despite his own personal views in support of the availability of abortions, Ely was critical of the Court's decision to utilize the doctrine of substantive due process, arguing that since the Court's ruling was untethered from the constitution's text, it had "no business imposing it."

He further contended that justices of the Supreme Court had an obligation to establish constitutional rights "in some identifiable constitutional value" before barring states from imposing their own regulations on abortion:"What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it."

Ely agreed that a right of privacy can be inferred from various provisions in the Constitution and that the right was grounded in its history, text, and theory.

However, he saw no reason why it would have included a right to abortion, why that right would be fundamental, and why the countervailing interests of protecting the fetus did not count as part of a disenfranchised minority.

His 1980 work, Democracy and Distrust, became the most-cited legal text written in the 20th century.

From 1982 until 1987, he was the 9th dean of Stanford Law School.

As a third-year student at Yale Law School, Ely became a member of the legal team of Abe Fortas, contributing to the landmark ruling in Gideon v. Wainwright that required states to provide legal representation to those who could not afford their own.

He continued his legal career as the youngest staff member of the Warren Commission tasked with investigating the assassination of John F. Kennedy.

After clerking for Justice Earl Warren, he went on to study abroad and returned to take a position as a public defender before beginning a distinguished career in academia as a professor at Yale, Harvard, and Stanford.

During his scholarly career, Ely became known for his witty legal writing, devotion to the separation of powers, and championship of the political process theory.

An outspoken critic of judicial activism, he penned an article in the pages of the Yale Law Journal criticizing the Supreme Court's decision in Roe v. Wade in spite of his own agreements with the ruling on policy grounds.

In 1982, Ely left his place at Harvard in order to serve as the dean of Stanford Law School, remaining with the faculty until 1996.

At Stanford, his tenure as dean was marked by a program to implement a loan forgiveness program for public interest lawyers and to revitalize the law school's curriculum—something he described as "a boring wasteland".

A liberal Democrat, he also worked to advance the university's social justice and diversity.

At the end of his deanship in 1987, Ely continued teaching at Stanford as the university's Robert E. Paradise Professor of Law and developed an interest in subjects concerning congressional war powers.

Towards the end of his article, he wrote:"It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's—it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."The Wages of Crying Wolf projected a profound influence over legal opinions concerning Roe, with the article eventually becoming the third most-cited work in the history of The Yale Law Journal according to a 1991 study by Fred R. Shapiro.

In 1996, Ely had three publications which were among the most-cited law review articles of all time.

Prompted by his love of scuba diving, Ely visited the University of Miami School of Law in 1996.

Upon discovering he liked the city and the faculty, he chose to stay and became the university's Richard A. Hausler Professor of Law—the law school's most distinguished chair.

According to a 2000 study in the University of Chicago's Journal of Legal Studies, he was ranked fourth among the most widely cited legal scholars in American history after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes Jr.

Ely was born and raised in New York City.

A similar ranking by Shapiro in 2012 placed it as the 20th most-cited law review article of all time.

In a 2022 piece for The New York Times, Emily Bazelon described it as having "eviscerated Blackmun's opinion," with Linda Greenhouse stating that Ely "sent Roe into the world disabled...It really was very damaging. Not because the American public cared about doctrine—they cared about results—but because it left Roe without friends in high places."