Turning the Law on its Head

Two years ago, John Hart Ely was just another professor of Law. His no-nonsense style and scholarship had won him the respect of his colleagues in Langdell Hall, but Ely shunned the spotlight almost aggressively, avoiding the congressional hearings and public histrionics that many fellow professors revelled in. On the home front, too, he played it cool, largely steering clear of internal battles over the Law Review and affirmative action.

Today Ely retains his retiring nature, but he can no longer escape the public eye. He is now universally acknowledged to be one of the nation's top three of four constitutional scholars, having ascended to the top of his field on the strength of his 1980 book, Democracy and Distrust. That work has been widely hailed as the most innovative theory of judicial review since World War II and the most important book about law in 15 years. Notes one Law School instructor, "Nobody takes constitutional law today without learning Ely's name. That wasn't true several years ago."

Democracy and Distrust did more for Ely than thrust him into the legal limelight. It also prompted Stanford Law School in December to appoint the 42-year-old Ely its next dean. His recent scholastic credentials, in fact, were so overpowering that the vote of Stanford's appointments committee was unanimous--almost unheard of in a field as sharply divided intellectually as constitutional law.

Not that Ely pulled any punches with his scholarship--far from it. Two weeks ago, his office received the 100th published review of Ely's book. Gerald Gunther, a Stanford law professor with no small reputation himself, says of Ely's work. "I can't recall a book in the field that has spurred this many symposia and reviews, he may have set a record for the amount of discussion of theory that has generated." But while most reviewers laud Ely's scholarship, his argument that judges should confine themselves to reviewing only certain, narrow types of laws, has provoked wide controversy and sharp debate in the legal world Says Ely, with understatement. "It did get more attention than I expected."

And understatement is the cornerstone of the Ely style. In person and in writing, his is dry, slightly cynical humor that allows him to stray just so far from the serious mien he adopts toward his subjects. He appears reluctant to discuss his personal life, but eager to hold forth on his theories, straightforwardly but not pompously. Clarity, too, seems an Ely hallmark--even an analysis as complex as that of Democracy and Distant comes across clearly and colorfully in his hands, as Ely's occasional asides temper the book's serious analysis.

Indeed, the book's theory seems almost too simple as Ely lays it out. He dismisses the notion that judges should ever consider the merits of legislation, unwise as it may seem. The reason: judicial interventionism subverts the democratic process, and the values that judges often invoke to strike down legislation are often less than widely shared. "I guess the background principle is, 'Don't second-guess the legislature," Ely explains.

That judicial self-restraint has certainly not marked the Supreme Court during most of the past three decades; justices like William O. Dougles, the "Great Dissenter," carved out activist roles and frequently invalidated legislation that they felt contradicted basic American values. To such judges, Ely's answer is simple: "It must be very frustrating for people who think they understand things better than elected officials. But that's what they ought to learn to be--frustrated."

But arguing for judicial passivism in the name of democracy is nothing new; scholars have done it for generations, raising their voices in particular in the aftermath of the liberal activist Court of Chief Justice Earl Warren--which provoked the wrath of conservatives by striking down legislation with regularity during the 1950s and 1960s. What makes Ely's approach unique is that he spotlights a small area in which he argues judges must exert their authority. As a result, he likes to call himself "a selective activist."

Ely sees judges as specially charged, first, with purifying the political process--unblocking "stoppages," in his ling. Legislation that seems to subvert the principle of "one man, one vote" would warrant intense judicial scrutiny; so, for the matter, would government actions that limit political speech or assembly. Ely derives that role directly from the Constitution, which he contends is almost solely "about process"--and includes none of the "substantive values" that judges have sought to find in it.

Second, he contends, the Constitution implicitly calls upon judges to protect minorities within the political process. Legislatures that pass bills imposing burdens on specific groups inadequately represented in the legislature should be watched particularly closely. A mostly white legislature that singles out white citizens for certain burdens would not be called to task by a court of Ely clones. But his judges would be suspicious of any bill that penalizes a specific group that is unlikely to have been looked out for by the legislature. The bottom line is that under Ely's "we they" formula, electoral or legislative processes that violate Ely's rule of "equal concern and respect" should be scrapped, all else should not

The genius of Ely's scheme is that it seems to avoid the age-old tension between democratic theory and judicial activism. And in Democracy and Distrust, Ely buttressed his process-oriented view with a historical analysis of the Constitution so persuasive that Ely could contend that his "representation-reinforcing" theory of judicial review was just what the Founding Fathers had intended.

Under his scheme, "The Court can do a lot of leading--but only in purifying and opening up the political process. For the ultimate role of judges, as Ely saw it, was "not to second-guess the merits of what the political branches have done, but rather to see if it was done fairly." Simple and appealing.

But that's not how everyone sees it. For every Ely convert, there has been an ardent critic, and almost all of the latter are politically liberal. One of Ely's sharpest critics, law professor Richard Parker, argues that his colleague's focus on process alone--and not fundamental rights--"is grossly middle of the road and insensitive to class distinctions." Democracy and Distrust, Parker has written is just "an apology" for the upper-middle class polity that is America.

Another critic, law professor Laurence H. Tribe, argues that Ely's approach would strip judges of power to review much legislation that could deny men real rights. And Archibald Cox, Loeb University Professor, takes issue with Ely's reading of history. To Cox, Ely's otherwise excellent work ignored the Constitution's natural rights heritage..one that should allow judges to nullify legislation that clashes with America's timeless values--no matter how pure the process that brought about the legislation.

Ely considers himself a political liberal; his colleagues guess his voting record would show him to be a mainstream Democrat. The irony, to his critics, is that judges who adopt Ely's "selective activism" could undermine traditionally liberal ideas. Ely does not disagree--but to him, having judges as "an elite with a final word" outweighs the danger of having unwise legislation.

His theory, he acknowledges, would have stopped judges who struck down state laws from "discovering" new rights during the past two decades--like the rights to privacy, and to abortion in some circumstances. For liberal judges, "It'd be frustrating, I'm sure," Ely says. "But that's democracy."

Liberal or conservative, professors agree Ely's brand of judicial restraint could prove popular with the ascendancy of conservatism in Washington. Yet Ely brands as "probably unconstitutional" the recent efforts of the Far Right to limit the Court's jurisdiction on matters ranging from school prayer to busing to abortion. Still, conservatives appreciate the hands-off approach Ely would take on many cases. And the one current member whom Ely says has come close to following the tenets of his theory. Justice Byron "Whizzer White, has usually opposed scrutinizing legislation that allegedly violates so-called "fundamental rights," and future Reagan appointees would likely do the same.

But interestingly, Cox has an answer for those who would call Ely's advocacy of judicial self-restraint a cover for conservatism. The former Watergate special prosecutor notes that Ely's idol is Earl Warren--to whom Democracy and Distrust is dedicated and that in lionizing the Warren Court. Ely is "defending the most activist Court we ever had."

To Cox, only a few Warren Court decisions would stray from Ely's "representation-reinforcing" approach, most notably the decisions finding new personal rights, like that to privacy. But since most of the key decisions likely to face the Court soon deal with alleged personal rights (like the abortion decision nine years ago), the liberals rebut an Ely esque Court could have a conservative impact, indeed.

While federal judges say they are familiar with Ely's theory, most seem to doubt that a judge could consistently apply it to tough cases. Washington D C circuit judge Shelly Wright--who asked Ely to clerk for him more than 15 years ago, only to have Ely accept a similar post with Warren instead--lauds Ely's "outstanding reputation in judicial circles," but notes of Democracy and Distrust. "Like a lot of writing by scholastics it doesn't get close enough to the practicality that judges have to face," He adds, "I know (Ely's) got a lot of fine distinctions about his judicial restraint, but it's that kind of line-drawing that makes judges turn off."

Fifth circuit judge Alyin Robin also lauds the hands-off role Ely posits for the Court, but says Ely's finely wrought theory on the limits of judicial activism could never be perfectly realized. "Sometimes the theory doesn't fit the duty" of the judge, especially in the hard cases that tend to reach the Supreme Court, he says.

Agrees Washington circuit judge Carl McGowan, "When you go on the bench and you're grappling with individual cases, you find it difficult to implement any theory of judicial review...I find it hard for the good judge to pin any sort of label on himself." Should Ely ever don judicial robes, "he'd be tripped up sooner or later by a case that doesn't fit. Ely on the bench would not be Ely in the book...It would be an evil man who would disregard justice and law to follow his own theory," McGowan says.

What about a Justice Ely? Ely laughs at the thought: "There isn't a justice on the Court who's really voiced a theory of judicial review, and since theoreticians like himself are notoriously unsuccessful at being tapped for Court vacancies. "It's not a problem that's likely to arise."

But if, somehow...? In that case, Ely says, he believes he could "very generally" follow his prescribed course of selective activism. Although "I would not want to see a Court of nine or even six professors or theoreticians." Ely says he "would try to be coherent and principled about it."

Pressed, however, he retreats a bit. All judges should respect precedent as well as their own theories: age-old precedents "shouldn't just be precipitously ripped out. I don't think it's bad when someone joins the Court and it shifts." As a result, Ely says, he would have to respect the already-derived right like that of privacy and the right to print obscenity--despite his philosophic objections Pausing, he adds. "Any single member of the Court should have some respect for the other eight people who've been on the Court before him even if you're a professor with a well-developed theory."

Future Justice or no, Ely probably need not worry about posterity. As a Yale law student, he helped future Court Justice Abe Fortas win the landmark Gideon v. Wainwright case, in which the Court declared that indigents have the constitutional rights to counsel at trials. He did a stint on the staff of the Warren Commission investigating the death of President John F. Kennedy '40, clerked for Justice Warren the next year, and worked as a public defender in San Diego.

Having come to Harvard 13 years ago, Ely took a year off six years ago to work as general counsel to the Department of Transportation, at the request of then-Secretary William Coleman, an old friend. In that capacity, he successfully argued in court that the controversial supreme jet, the Concorde, should be permitted to land in New York's Kennedy Airport on an experimental basis. Judge McGowan, who helped decide that case, recalls. He made one of the finest arguments I've ever heard." And then, of course, there's Democracy and Distrust--and the deanship.

The latter, Ely says, he decided to accept because he's "a little tired of being a professor." Stanford's California site made the decision to leave Harvard that much easier. That transfer, of course, does not please Harvard, "Stanford's good fortune is our great loss," Cox says.

But at Stanford, they're delighted to get one of the nation's top legal theorists. They're delighted to find a dean who doesn't speak out just because he likes to hear the sound of his voice, who doesn't pull punches, professionally or personally. "He's a non-bullshit fellow and non-phoney. That's not the qualifications of the deans I've known," Gunther--who calls his colleague-to-be a "bright light"--says.

Harvard colleague Parker puts it another way: "Legal academia is as pompous a sector of academia as any, full of hot air and gas. Ely has none of that...It'd be very refreshing to be at a school with him as dean," He adds. "He has certainly got the energy to build a law school like Stanford into one of the two or three best."

Coming from a man who calls Ely's professional views "grossly middle of the road and insensitive to class distinctions," such praise is noteworthy. But if Ely's colleagues are to be trusted, it suggests something more--that the vast recognition that has come John Hart Ely's way in the aftermath of Democracy and Distrust could scarcely he more deserved. Adds McGowan of Ely's legacy, "It's a book that every judge ought to read."