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John Hart Ely

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John Hart Ely
John Hart Ely (legal scholar).png
Born(1938-12-03)December 3, 1938
New York City, U.S.
DiedOctober 25, 2003(2003-10-25) (aged 64)
Coconut Grove, Miami, Florida
Awards
Academic background
Alma mater
Influences
Academic work
DisciplineConstitutional law
Institutions
Notable works
  • The Wages of Crying Wolf (1973)
  • Democracy and Distrust (1980)
Notable ideasPolitical process theory
Influenced
10th Dean of Stanford Law School
In office
1982–1987
PresidentDonald Kennedy
Preceded byCharles J. Meyers
Succeeded byPaul A. Brest

John Hart Ely (/ˈl/ EE-lee; December 3, 1938 – October 25, 2003) was an American legal scholar. 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. From 1982 until 1987, he was the 10th 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 much-scrutinized Warren Commission tasked with investigating the assassination of John F. Kennedy. After clerking for Justice Earl Warren, he would go on to study abroad and returned to take a modest position as a public defender before beginning his 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,[3] 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 castigating the Supreme Court's decision in Roe v. Wade in spite of his own agreements with the ruling on policy grounds. His 1980 work, Democracy and Distrust, became the most-cited legal text written in the 20th century.[4][5][6]

In 1996, Ely had three publications which were among the most-cited law review articles of all time.[7] According to a 2000 study in the University of Chicago's Journal of Legal Studies, he was one of the most widely-cited legal scholars in American history having been ranked just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes Jr.[6][8]

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Harvard Law School

Harvard Law School

Harvard Law School is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.

Abe Fortas

Abe Fortas

Abraham Fortas was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from Rhodes College and Yale Law School. He later became a law professor at Yale Law School and then an advisor for the U.S. Securities and Exchange Commission. Fortas worked at the Department of the Interior under President Franklin D. Roosevelt, and was appointed by President Harry S. Truman to delegations that helped set up the United Nations in 1945.

Gideon v. Wainwright

Gideon v. Wainwright

Gideon v. Wainwright, 372 U.S. 335 (1963), was a landmark U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment of the U.S. Constitution requires U.S. states to provide attorneys to criminal defendants who are unable to afford their own. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.

Assassination of John F. Kennedy

Assassination of John F. Kennedy

John F. Kennedy, the 35th president of the United States, was assassinated on Friday, November 22, 1963, at 12:30 p.m. CST in Dallas, Texas, while riding in a presidential motorcade through Dealey Plaza. Kennedy was in the vehicle with his wife, Jacqueline, Texas Governor John Connally, and Connally's wife, Nellie, when he was fatally shot from the nearby Texas School Book Depository by Lee Harvey Oswald, a former US Marine. The motorcade rushed to Parkland Memorial Hospital, where Kennedy was pronounced dead about 30 minutes after the shooting; Connally was also wounded in the attack but recovered. Vice President Lyndon B. Johnson assumed the presidency upon Kennedy's death.

Earl Warren

Earl Warren

Earl Warren was an American attorney, politician, and jurist who served as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presided over a major shift in American constitutional jurisprudence, which has been recognized by many as a "Constitutional Revolution" in the liberal direction, with Warren writing the majority opinions in landmark cases such as Brown v. Board of Education (1954), Reynolds v. Sims (1964), Miranda v. Arizona (1966) and Loving v. Virginia (1967). Warren also led the Warren Commission, a presidential commission that investigated the 1963 assassination of President John F. Kennedy. He also served as Governor of California from 1943 to 1953, and is the last chief justice to have served in an elected office before nomination to the Supreme Court. Warren is generally considered to be one of the most influential Supreme Court justices and political leaders in the history of the United States.

Public defender (United States)

Public defender (United States)

In the United States, a public defender is a lawyer appointed by the courts and provided by the state or federal governments to represent and advise those who cannot afford to hire a private attorney. Public defenders are full-time attorneys employed by the state or federal governments. The public defender program is one of several types of criminal legal aid in the United States.

Political process theory (law)

Political process theory (law)

Political process theory is a theory of judicial interpretation championed by American legal scholar John Hart Ely, which argues that judges should focus on maintaining a well-functioning democratic process and guard against systematic biases in the legislative process.

Judicial activism

Judicial activism

Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually implies that judges make rulings based on their own views rather than on precedent. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.

Roe v. Wade

Roe v. Wade

Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to choose to have an abortion. The decision struck down many federal and state abortion laws, and it caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.

Richard Posner

Richard Posner

Richard Allen Posner is an American jurist and legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chicago Law School, Posner is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most-cited legal scholar of the 20th century. He is widely considered to be one of the most influential legal scholars in the United States.

Ronald Dworkin

Ronald Dworkin

Ronald Myles Dworkin was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New York University and Professor of Jurisprudence at University College London. Dworkin had taught previously at Yale Law School and the University of Oxford, where he was the Professor of Jurisprudence, successor to philosopher H.L.A. Hart. An influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for "his pioneering scholarly work" of "worldwide impact." According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century. After his death, the Harvard legal scholar Cass Sunstein said Dworkin was "one of the most important legal philosophers of the last 100 years. He may well head the list."

Oliver Wendell Holmes Jr.

Oliver Wendell Holmes Jr.

Oliver Wendell Holmes Jr. was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932. He is one of the most widely cited U.S. Supreme Court justices and most influential American common law judges in history, noted for his long service, pithy opinions—particularly those on civil liberties and American constitutional democracy—and deference to the decisions of elected legislatures. Holmes retired from the court at the age of 90, an unbeaten record for oldest justice on the Supreme Court. He previously served as a Brevet Colonel in the American Civil War, in which he was wounded three times, as an associate justice and chief justice of the Massachusetts Supreme Judicial Court, and as Weld Professor of Law at his alma mater, Harvard Law School. His positions, distinctive personality, and writing style made him a popular figure, especially with American progressives.

Early life and education

Ely was born and raised in New York City.[9][10] After graduating from Westhampton Beach High School in 1956,[11] he enrolled at Princeton University, majoring in philosophy and earning an A.B.,[12] 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.[13][14]

While still a third-year student at Yale, Ely became a summer clerk at Arnold, Fortas, & Porter—a Washington, D.C. law firm.[15] 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.[12] Ely had been tasked with doing the basic research for the case, writing tirelessly to produce a set of legal memoranda including a twenty-five page paper titled "Application, Ambiguities, and Weaknesses of the Special Counsel Rule" that examined the application of Betts v. Brady in state courts.[16][note 1]

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.[18] 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.[19][18] Following his clerkship, Ely studied at the London School of Economics as a Fulbright scholar.[14][20] 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 lowly position as a public defender in San Diego.[20][10]

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New York City

New York City

New York, often called New York City or NYC, is the most populous city in the United States. With a 2020 population of 8,804,190 distributed over 300.46 square miles (778.2 km2), New York City is also the most densely populated major city in the United States, and is more than twice as populous as second-place Los Angeles. New York City lies at the southern tip of New York State, and constitutes the geographical and demographic center of both the Northeast megalopolis and the New York metropolitan area, the largest metropolitan area in the United States both by population and by urban landmass. With over 20.1 million people in its metropolitan statistical area and 23.5 million in its combined statistical area as of 2020, New York is one of the world's most populous megacities, and over 58 million people live within 250 mi (400 km) of the city. New York City is a global cultural, financial, entertainment, and media center with a significant influence on commerce, health care and life sciences, research, technology, education, politics, tourism, dining, art, fashion, and sports. Home to the headquarters of the United Nations, New York is an important center for international diplomacy, an established safe haven for global investors, and is sometimes described as the capital of the world.

Princeton University

Princeton University

Princeton University is a private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth as the College of New Jersey, Princeton is the fourth-oldest institution of higher education in the United States and one of the nine colonial colleges chartered before the American Revolution. It is one of the highest-ranked universities in the world. The institution moved to Newark in 1747, and then to the current site nine years later. It officially became a university in 1896 and was subsequently renamed Princeton University. It is a member of the Ivy League.

Phi Beta Kappa

Phi Beta Kappa

The Phi Beta Kappa Society (ΦΒΚ) is the oldest academic honor society in the United States, and the most prestigious, due in part to its long history and academic selectivity. Phi Beta Kappa aims to promote and advocate excellence in the liberal arts and sciences, and to induct the most outstanding students of arts and sciences at only select American colleges and universities. It was founded at the College of William and Mary on December 5, 1776, as the first collegiate Greek-letter fraternity and was among the earliest collegiate fraternal societies. Since its inception, 17 U.S. presidents, 40 U.S. Supreme Court justices, and 136 Nobel laureates have been inducted members.

Bachelor of Laws

Bachelor of Laws

Bachelor of Laws is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in Australia, People's Republic of China, Hong Kong S.A.R., Macau S.A.R., Malaysia, Bangladesh, India, Japan, Pakistan, Uganda, Kenya, Ghana, New Zealand, Nigeria, Singapore, South Africa, Botswana, Israel, Brazil, Tanzania, Zambia, and many other jurisdictions.

Order of the Coif

Order of the Coif

The Order of the Coif is an honor society for United States law school graduates. The name is a reference to the ancient English order of advocates, the serjeants-at-law, whose courtroom attire included a coif—a white lawn or silk skullcap, which came to be represented by a round piece of white lace worn on top of the advocate's wig. A student at an American law school who earns a Juris Doctor degree and graduates in the top 10 percent of their class is eligible for membership if the student's law school has a chapter of the Order. The Order of the Coif honor society was founded in 1902 at the University of Illinois College of Law.

Arnold & Porter

Arnold & Porter

Arnold & Porter Kaye Scholer LLP is an American multinational law firm. A white-shoe firm, Arnold & Porter is among the largest law firms in the world, by both revenue and by its number of lawyers.

Abe Fortas

Abe Fortas

Abraham Fortas was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from Rhodes College and Yale Law School. He later became a law professor at Yale Law School and then an advisor for the U.S. Securities and Exchange Commission. Fortas worked at the Department of the Interior under President Franklin D. Roosevelt, and was appointed by President Harry S. Truman to delegations that helped set up the United Nations in 1945.

Gideon v. Wainwright

Gideon v. Wainwright

Gideon v. Wainwright, 372 U.S. 335 (1963), was a landmark U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment of the U.S. Constitution requires U.S. states to provide attorneys to criminal defendants who are unable to afford their own. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.

Clarence Earl Gideon

Clarence Earl Gideon

Clarence Earl Gideon was a poor drifter accused in a Florida state court of felony breaking and entering. While in prison, he appealed his case to the US Supreme Court, resulting in the landmark 1963 decision Gideon v. Wainwright holding that a criminal defendant who cannot afford to hire a lawyer must be provided one at no cost.

Betts v. Brady

Betts v. Brady

Betts v. Brady, 316 U.S. 455 (1942), was a landmark United States Supreme Court case that denied counsel to indigent defendants prosecuted by a state. The reinforcement that such a case is not to be reckoned as denial of fundamental due process was famously overruled by Gideon v. Wainwright.

Law clerk

Law clerk

A law clerk or a judicial clerk is a person, generally someone who provides direct counsel and assistance to a lawyer or judge by researching issues and drafting legal opinions for cases before the court. Judicial clerks often play significant roles in the formation of case law through their influence upon judges' decisions and perform some quasi-secretarial duties. Judicial clerks should not be confused with legal clerks/paralegals, court clerks, or courtroom deputies who perform other duties within the legal profession and perform more quasi-secretarial duties than law clerks, or legal secretaries that only provide secretarial and administrative support duties to attorneys and/or judges.

Earl Warren

Earl Warren

Earl Warren was an American attorney, politician, and jurist who served as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presided over a major shift in American constitutional jurisprudence, which has been recognized by many as a "Constitutional Revolution" in the liberal direction, with Warren writing the majority opinions in landmark cases such as Brown v. Board of Education (1954), Reynolds v. Sims (1964), Miranda v. Arizona (1966) and Loving v. Virginia (1967). Warren also led the Warren Commission, a presidential commission that investigated the 1963 assassination of President John F. Kennedy. He also served as Governor of California from 1943 to 1953, and is the last chief justice to have served in an elected office before nomination to the Supreme Court. Warren is generally considered to be one of the most influential Supreme Court justices and political leaders in the history of the United States.

Academic career

From 1982 until 1996, Ely taught at and was dean of Stanford Law School (pictured)
From 1982 until 1996, Ely taught at and was dean of Stanford Law School (pictured)

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.[21][22] 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.[23][24]

In 1982, Ely left his place at Harvard in order to serve as the dean of Stanford Law School,[25] remaining with the faculty until 1996.[26][27] 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".[26] A liberal Democrat, he also worked to advance the university's social justice and diversity.[26] 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.[23][28]

Prompted by his love of scuba diving, Ely visited the University of Miami School of Law in 1996.[29] Upon discovering he liked the city and the faculty, he chose to stay and became the university's Richard A. Hausler Professor of Law[30]—the law school's most distinguished chair.[22][31]

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Stanford Law School

Stanford Law School

Stanford Law School is the law school of Stanford University, a private research university near Palo Alto, California. Established in 1893, it is regarded as one of the most prestigious law schools in the world. Stanford Law has regularly ranked among the top three law schools in the United States by U.S. News & World Report since the magazine first published law school rankings in the 1980s, and has ranked second for most of the past decade. In 2021, Stanford Law had an acceptance rate of 6.28%, the second-lowest of any law school in the country. Since 2019, Jennifer Martínez has served as its dean.

Harvard Law School

Harvard Law School

Harvard Law School is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.

Roe v. Wade

Roe v. Wade

Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to choose to have an abortion. The decision struck down many federal and state abortion laws, and it caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.

General counsel

General counsel

A general counsel, also known as chief counsel or chief legal officer (CLO), is the chief in-house lawyer for a company or a governmental department.

Smithsonian Institution

Smithsonian Institution

The Smithsonian Institution, or simply the Smithsonian, is a group of museums and education and research centers, the largest such complex in the world, created by the U.S. government "for the increase and diffusion of knowledge". Founded on August 10, 1846, it operates as a trust instrumentality and is not formally a part of any of the three branches of the federal government. The institution is named after its founding donor, British scientist James Smithson. It was originally organized as the United States National Museum, but that name ceased to exist administratively in 1967.

Liberalism in the United States

Liberalism in the United States

Liberalism in the United States is a political and moral philosophy based on concepts of unalienable rights of the individual. The fundamental liberal ideals of freedom of speech, freedom of the press, freedom of religion, the separation of church and state, the right to due process and equality under the law are widely accepted as a common foundation of liberalism. It differs from liberalism worldwide because the United States has never had a resident hereditary aristocracy and avoided much of the class warfare that characterized Europe. According to Ian Adams: "Ideologically, all US parties are liberal and always have been. Essentially they espouse classical liberalism, that is a form of democratised Whig constitutionalism plus the free market. The point of difference comes with the influence of social liberalism" and the proper role of government.

Democratic Party (United States)

Democratic Party (United States)

The Democratic Party is one of the two major contemporary political parties in the United States. Founded in 1828, it was predominantly built by Martin Van Buren, who assembled a wide cadre of politicians in every state behind war hero Andrew Jackson, making it the world's oldest active political party. Its main political rival has been the Republican Party since the 1850s. The party is a big tent, and is less ideologically uniform than the Republican Party due to the broader list of unique voting blocs that compose it, though modern liberalism is the majority ideology in the party.

Social justice

Social justice

Social justice is justice in terms of the distribution of wealth, opportunities, and privileges within a society. In Western and Asian cultures, the concept of social justice has often referred to the process of ensuring that individuals fulfill their societal roles and receive their due from society. In the current movements for social justice, the emphasis has been on the breaking of barriers for social mobility, the creation of safety nets, and economic justice. Social justice assigns rights and duties in the institutions of society, which enables people to receive the basic benefits and burdens of cooperation. The relevant institutions often include taxation, social insurance, public health, public school, public services, labor law and regulation of markets, to ensure distribution of wealth, and equal opportunity.

Racial diversity in United States schools

Racial diversity in United States schools

Racial diversity in United States schools is the representation of different racial or ethnic groups in American schools. The institutional practice of slavery, and later segregation, in the United States prevented certain racial groups from entering the school system until midway through the 20th century, when Brown v. Board of Education forbade racially segregated education. Globalization and migrations of peoples to the United States have increasingly led to a multicultural American population, which has in turn increased classroom diversity. Nevertheless, racial separation in schools still exists today, presenting challenges for racial diversification of public education in the United States.

War Powers Clause

War Powers Clause

Article I, Section 8, Clause 11 of the U.S. Constitution, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording:[The Congress shall have Power ...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ...

Scuba diving

Scuba diving

Scuba diving is a mode of underwater diving whereby divers use breathing equipment that is completely independent of a surface air supply. The name "scuba", an acronym for "Self-Contained Underwater Breathing Apparatus", was coined by Christian J. Lambertsen in a patent submitted in 1952. Scuba divers carry their own source of breathing gas, usually compressed air, affording them greater independence and movement than surface-supplied divers, and more time underwater than free divers. Although the use of compressed air is common, a gas blend with a higher oxygen content, known as enriched air or nitrox, has become popular due to the reduced nitrogen intake during long and/or repetitive dives. Also, breathing gas diluted with helium may be used to reduce the likelihood and effects of nitrogen narcosis during deeper dives.

University of Miami School of Law

University of Miami School of Law

The University of Miami School of Law is the law school of the University of Miami, a private research university in Coral Gables, Florida.

Scholarship

The Wages of Crying Wolf

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.[18] Despite his own personal views in support of the availability of abortions,[32][33] Ely was critical of the Court's decision to utilize the doctrine of substantive due process,[34] arguing that since the Court's ruling was untethered from the constitution's text, it had "no business imposing it".[35][36] 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:[37]

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.[38]

Ely agrees 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 include 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.[39][40] 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.[41]

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.[42] 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."[43] When the Supreme Court overruled Roe in Dobbs v. Jackson Women's Health Organization, Justice Samuel Alito cited Wages as an example of the academic criticism it faced.[44]

Democracy and Distrust

While a professor at Harvard,[45] Ely produced his most notable work: a book titled Democracy and Distrust: A Theory of Judicial Review published in 1980.[46][47] The text would become one of the most influential works about American constitutional law, and among the most praised for deconstructing—and defending—the doctrine of judicial review on procedural grounds.[48][18][49] Democracy and Distrust rejected theories which had no basis in the constitutional "text, history, or structure", using political theory as opposed to originalism to serve as argumentative foundations.[23]

The book may be effectively divided as two separate books: one criticizing constitutionally ungrounded legal theories, and the other as Ely providing his own theory for judicial interventions.[50] Ely expounds a theory of constitutional interpretation known as political process theory, suggesting that judges ought to focus on maintaining a well-functioning democratic process and guard against systematic biases in the legislative process.[51][52]

Ely asserts 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 (as in the Court's decision in Baker v. Carr). He argues that the Constitution's unenumerated rights (such as the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment) are procedural in nature, rather than substantive, and thus protect rights to democratic processes but are not rights of a substantive nature. Justice Stone's Footnote Four from United States v. Carolene Products Co. (1938) is a chief inspiration for Ely's theory of judicial review.[53]

The initial release of Democracy and Distrust was controversial; it received a large amount of criticism from academics, including a dismissive piece from Laurence Tribe published in the Yale Law Journal.[47][note 2] However, in a 1991 appraisal of the work by Michael J. Klarman, he concludes that "political process theory emerges relatively unscathed from attacks leveled by Ely's critics against its more global aspects."[55] In a New York Times piece after Ely's death, Mark Tushnet called it ''the most important work of constitutional scholarship in the two generations from the time it was published to now.''[18]

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Fred R. Shapiro

Fred R. Shapiro

Fred Richard Shapiro is an American academic and writer working as the editor of The Yale Book of Quotations, The Oxford Dictionary of American Legal Quotations, and several other books.

Emily Bazelon

Emily Bazelon

Emily Bazelon is an American journalist. She is a staff writer for The New York Times Magazine, a senior research fellow at Yale Law School, and co-host of the Slate podcast Political Gabfest. She is a former senior editor of Slate. Her work as a writer focuses on law, women, and family issues. She has written two national bestsellers published by Penguin Random House: Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy (2013) and Charged: The New Movement to Transform American Prosecution and End Mass Incarceration (2019). Charged won the 2020 Los Angeles Times Book Prize in the Current Interest category, and the 2020 Silver Gavel Award from the American Bar Association. It was also the runner up for the J. Anthony Lukas Book Prize from Columbia University and the Nieman Foundation, and a finalist for the Helen Bernstein Book Award for Excellence in Journalism from the New York Public Library.

Linda Greenhouse

Linda Greenhouse

Linda Joyce Greenhouse is an American legal journalist who is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School. She is a Pulitzer Prize-winning reporter who covered the United States Supreme Court for nearly three decades for The New York Times. Since 2017, she is the president of the American Philosophical Society, and a member of the Phi Beta Kappa Senate.

Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022), is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), giving individual states the full power to regulate any aspect of abortion not protected by federal law.

Judicial review in the United States

Judicial review in the United States

In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.

Originalism

Originalism

In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five. This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times, even if such interpretation is different from the original interpretations of the document. Originalism should not be confused with strict constructionism.

Political process theory (law)

Political process theory (law)

Political process theory is a theory of judicial interpretation championed by American legal scholar John Hart Ely, which argues that judges should focus on maintaining a well-functioning democratic process and guard against systematic biases in the legislative process.

Baker v. Carr

Baker v. Carr

Baker v. Carr, 369 U.S. 186 (1962), was a landmark United States Supreme Court case in which the Court held that redistricting qualifies as a justiciable question under the Fourteenth Amendment, thus enabling federal courts to hear Fourteenth Amendment-based redistricting cases. The court summarized its Baker holding in a later decision as follows: "Equal Protection Clause of the Fourteenth Amendment limits the authority of a State Legislature in designing the geographical districts from which representatives are chosen either for the State Legislature or for the Federal House of Representatives.". The court had previously held in Gomillion v. Lightfoot that districting claims over racial discrimination could be brought under the Fifteenth Amendment.

Ninth Amendment to the United States Constitution

Ninth Amendment to the United States Constitution

The Ninth Amendment to the United States Constitution addresses rights, retained by the people, that are not specifically enumerated in the Constitution. It is part of the Bill of Rights. The amendment was introduced during the drafting of the Bill of Rights when some of the American founders became concerned that future generations might argue that, because a certain right was not listed in the Bill of Rights, it did not exist. However, the Ninth Amendment has rarely played any role in U.S. constitutional law, and until the 1980s was often considered "forgotten" or "irrelevant" by many legal academics.

Privileges or Immunities Clause

Privileges or Immunities Clause

The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868.

Fourteenth Amendment to the United States Constitution

Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Often considered as one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.

Laurence Tribe

Laurence Tribe

Laurence Henry Tribe is an American legal scholar who is a University Professor Emeritus at Harvard University. He previously served as the Carl M. Loeb University Professor at Harvard Law School.

Personal life and death

In 1971, Ely married Nancy Halliday Ely-Raphel, who would later become the United States Ambassador to Slovenia,[26] with whom he had two sons: John and Robert.[4][56] However, the two divorced and Ely married Gisela Cardonne Ely, a Miami-Dade Circuit Court Judge.[12]

On October 25, 2003, Ely died in his Miami home at Coconut Grove after a long battle with cancer.[10] His funeral was held at Coral Gables Congregational Church and was attended by Dennis O. Lynch, then the dean of the University of Miami School of Law.[22]

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Nancy Halliday Ely-Raphel

Nancy Halliday Ely-Raphel

Nancy Halliday Ely-Raphel is an American diplomat. She was the United States Ambassador to Slovenia from 1998 to 2001. From 2001 to 2003, she was the first Director of the U.S. State Department's Office to Monitor and Combat Trafficking in Persons.

List of ambassadors of the United States to Slovenia

List of ambassadors of the United States to Slovenia

The diplomatic post of United States Ambassador to Slovenia was created after the disbanding of Yugoslavia and the United States recognizing the new nation of Slovenia on April 7, 1992. In August of that year, the American Embassy in Ljubljana opened with E. Allan Wendt as chargé d'affaires ad interim. He officially took over as ambassador in 1993.

Circuit court (Florida)

Circuit court (Florida)

The Florida circuit courts are state courts, and are trial courts of original jurisdiction for most controversies. In Florida, the circuit courts are one of four types of courts created by the Florida Constitution.

Coconut Grove

Coconut Grove

Coconut Grove, also known colloquially as The Grove, is the oldest continuously inhabited neighborhood of Miami in Miami-Dade County, Florida. The neighborhood is roughly bound by North Prospect Drive to the south, LeJeune Road to the west, South Dixie Highway and Rickenbacker Causeway to the north, and Biscayne Bay to the east. It is south of the neighborhoods of Brickell and The Roads and east of Coral Gables. The neighborhood's name has been sometimes spelled "Cocoanut Grove" but the definitive spelling "Coconut Grove" was established when the city was incorporated in 1919.

Cancer

Cancer

Cancer is a group of diseases involving abnormal cell growth with the potential to invade or spread to other parts of the body. These contrast with benign tumors, which do not spread. Possible signs and symptoms include a lump, abnormal bleeding, prolonged cough, unexplained weight loss, and a change in bowel movements. While these symptoms may indicate cancer, they can also have other causes. Over 100 types of cancers affect humans.

Coral Gables Congregational Church

Coral Gables Congregational Church

The Coral Gables Congregational Church is a historic Congregational church in Coral Gables, Florida, United States. The church was designed by the architect Richard Kiehnel of Kiehnel and Elliott in 1923 and is regarded as a fine example of Spanish Colonial Revival architecture. It is located at 3010 DeSoto Boulevard. On October 10, 1978, it was added to the U.S. National Register of Historic Places.

Awards and honors

In 1981, Ely was elected a member of the American Academy of Arts and Sciences.[57] The next year, he received the 1982 Triennial Award of the Order of the Coif for Democracy and Distrust. As the primary subject of the Virginia Law Review, the journal dedicated its May 1991 issue to examining Ely's book in the decade since it had been published.[28]

Ely was the recipient of multiple honorary degrees including those from the University of San Diego and the Chicago-Kent College of Law.[20] In 2003, Ely was awarded an honorary doctorate from Yale Law School;[9] the award's citation read: "Your work set the standard for constitutional scholarship for our generation."[45] Following his death in October of that same year, the school held a November symposium in his honor titled "On Democratic Ground: New Perspectives on John Hart Ely."[58]

In her 2011 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.[59]

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American Academy of Arts and Sciences

American Academy of Arts and Sciences

The American Academy of Arts and Sciences is one of the oldest learned societies in the United States. It was founded in 1780 during the American Revolution by John Adams, John Hancock, James Bowdoin, Andrew Oliver, and other Founding Fathers of the United States. It is headquartered in Cambridge, Massachusetts.

Virginia Law Review

Virginia Law Review

The Virginia Law Review is a law review edited and published by students at University of Virginia School of Law. It was established on March 15, 1913, and permanently organized later that year. The stated objective of the Virginia Law Review is "to publish a professional periodical devoted to law-related issues that can be of use to judges, practitioners, teachers, legislators, students, and others interested in the law." In addition to articles, the journal regularly publishes scholarly essays and student notes. A companion online publication, Virginia Law Review Online, has been in publication since 2007. The current editor-in-chief is Scott Chamberlain (2022–2023).

University of San Diego

University of San Diego

The University of San Diego (USD) is a private Roman Catholic research university in San Diego, California. Chartered in July 1949 as the independent San Diego College for Women and San Diego University, the two institutions merged in 1972.

Chicago-Kent College of Law

Chicago-Kent College of Law

Chicago-Kent College of Law is the law school affiliated with the Illinois Institute of Technology. It is the second oldest law school in the state of Illinois. It is ranked 91st among U.S. law schools, and its trial advocacy program is ranked in 2015 by U.S. News & World Report as the fourth best program in the U.S. According to Chicago-Kent's 2014 American Bar Association-required disclosures, 85% of the 2014 class secured a position six months after graduation. Of these 248 employed graduates, 172 were in positions requiring passage of the bar exam.

Hans Kelsen

Hans Kelsen

Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise of totalitarianism in Austria, Kelsen left for Germany in 1930 but was forced to leave his university post after Hitler's seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and later moved to the United States in 1940. In 1934, Roscoe Pound lauded Kelsen as "undoubtedly the leading jurist of the time". While in Vienna, Kelsen met Sigmund Freud and his circle, and wrote on the subject of social psychology and sociology.

Source: "John Hart Ely", Wikipedia, Wikimedia Foundation, (2023, January 26th), https://en.wikipedia.org/wiki/John_Hart_Ely.

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Footnotes
  1. ^ In the final, published brief which encompassed Ely's research that had been signed by Abe Fortas, Abe Krash, and Ralph Temple; the group acknowledged Ely's "valuable assistance" in a footnote since Ely could not sign the document seeing as he had not yet passed the bar.[17]
  2. ^ In one example of such criticism, an early review of the novel by Indiana University professor Stanley Conrad Fickle states that despite Ely's popularity, the book came across as "one of progressive disappointment".[54]
Selected publications

Books

  • Ely, John (1980). Democracy and Distrust. Harvard University Press. ISBN 978-0674196377.
  • Ely, John (1995). War and Responsibility. Princeton University Press. ISBN 978-0691025520.
  • Ely, John (1996). On Constitutional Ground. Princeton University Press. ISBN 978-0691025537.

Articles

References
  1. ^ Harvard Law Review 2004, p. 1758.
  2. ^ Harvard Law Review 2004, pp. 1761–1762.
  3. ^ Harvard Law Review 2004, p. 1743.
  4. ^ a b Marcus 2003.
  5. ^ Harvard Law Review 2004, p. 1749.
  6. ^ a b Shapiro 2000, p. 424.
  7. ^ Shapiro 1996, p. 760.
  8. ^ Regnier 2004, p. 981.
  9. ^ a b Trei 2003.
  10. ^ a b c Bernstein 2003.
  11. ^ "Westhampton Beach UFSD Community | Wall of Fame". whbschools.org. Retrieved November 24, 2022.
  12. ^ a b c Princeton Alumni Weekly.
  13. ^ Warren Commission 1964, p. 479.
  14. ^ a b Yale News 2003.
  15. ^ Lewis 1989, p. 127.
  16. ^ Lewis 1989, pp. 127–128.
  17. ^ Lewis 1989, p. 144.
  18. ^ a b c d e Liptak 2003.
  19. ^ Harvard Law Review 2004, p. 1757.
  20. ^ a b c Harvard Law Review 2004, p. 1754.
  21. ^ Harvard Law Review 2004, p. 1764.
  22. ^ a b c The Harvard Crimson 2003.
  23. ^ a b c Harvard Law Review 2004, p. 1750.
  24. ^ Ely 1980, p. vii.
  25. ^ Harvard Law Review 2004, p. 1761.
  26. ^ a b c d Stanford Lawyer 2004, p. 12.
  27. ^ Oliver 2003.
  28. ^ a b Stanford News 1991.
  29. ^ Lynch 2004, p. 976.
  30. ^ Harvard Law Review 2004, p. 1745.
  31. ^ Lynch 2004, p. 975.
  32. ^ Ely 1973, p. 923.
  33. ^ Baude 2021.
  34. ^ Kalman 1994, p. 728.
  35. ^ Balkin 2007, p. 291.
  36. ^ Ely 1973, p. 949.
  37. ^ Krotoszynski Jr. 2002, p. 133.
  38. ^ Ely 1973, pp. 935–936.
  39. ^ Richards 1989, p. 219.
  40. ^ Ely 1973, pp. 933–935.
  41. ^ Ely 1973, p. 947.
  42. ^ Shapiro 1991, pp. 1462, 1474.
  43. ^ Bazelon 2022.
  44. ^ Dobbs, 597 U.S. at 53–54.
  45. ^ a b Harvard Law Review 2004, p. 1748.
  46. ^ Harvard Law Review 2004, pp. 1749, 1763.
  47. ^ a b Klarman 1991, p. 747.
  48. ^ Doerfler & Moyn 2022, pp. 1–2.
  49. ^ Yoo 2005, p. 793.
  50. ^ Doerfler & Moyn 2022, p. 3.
  51. ^ Klarman 1991, pp. 748, 781–782.
  52. ^ Koffler 1981, pp. 405–406.
  53. ^ Klarman 1991, pp. 781–782, 784.
  54. ^ Fickle 1981, p. 637.
  55. ^ Klarman 1991, p. 782.
  56. ^ New York Times 1998.
  57. ^ "Member Directory | American Academy of Arts and Sciences". www.amacad.org. Retrieved November 25, 2022.
  58. ^ "Symposium to Honor John Hart Ely '63, Nov. 12-13". law.yale.edu. Retrieved November 25, 2022.
  59. ^ Baum 2012, pp. 53–54.

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