Who is Today’s John Hart Ely?

October 14, 2021   |   Tags:

This week I taught John Hart Ely's remarkable article, The Wages of Crying Wolf: A Comment on Roe v. Wade. It was an early and now-canonical critique of the Supreme Court's decision that was especially powerful because it was written by somebody who supported much of the work of the Warren Court, and who also supported Roe as a policy matter.

That is why Ely wrote this famous paragraph:

Roe v. Wade seems like a durable decision.

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.

In any event, consider this. Here is a (1) professor at a top law school writing (2) an article in a top law journal, that (3) strongly criticized the legality of a recent Supreme Court decision while (4) noting that he strongly endorsed the decision as a matter of policy, and did not think it would cause any bad consequences.

Is there a good example of somebody doing this in recent years? There have been some conservative critiques of Heller published, for instance, but the ones that comes to mind came from those who seem neutral or even skeptical of gun rights as a matter of policy. And of course I know there are many examples of top scholars who hold such views, but do not write them up in top journals.

I'd love to hear about good examples, and I'll try to post about them in due course.