Choosing heroes carefully.

• Author: Koh, Harold Hongju
• Position: John Hart Ely, law professor - Testimonial

"You don't need many heroes if you choose carefully," said John Hart Ely about Earl Warren. (1) That is why--as a scholar, as a teacher, as a spirit--John became one of mine.

I first "chose" him nearly thirty years ago when I was a first-year student at Harvard Law School. It was mid-December and I was struggling to understand the doctrine of Erie R.R. Co. v. Tompkins, (2) and how it applied to a case called Hanna v. Plumer. (3) After looking at a few turgid hornbooks, and wondering why on earth I was in law school, I ran across an article in the Harvard Law Review called The Irrepressible Myth of Erie. (4) "The ones I feel sorry for," John coolly told me, "are the people who paid $150 for the cassette tapes explaining the Federal Rules of Evidence." (5) And with those words I was hooked.

John was the first legal scholar who really spoke to me. I started reading John Ely like some people read John Grisham. In short order, I had devoured his Yale Law Journal pieces on Roe v. Wade (6) and Legislative and Administrative Motivation in Constitutional Law. (7) I read his classics on flag desecration, (8) the Bill of Attainder Clause, (9) and reverse discrimination. (10) As a second-year student, I stayed up all night chuckling over Democracy and Distrust. I woke to realize that perhaps I had glimpsed for the first time what constitutional law and legal scholarship were really about.

Those of you who have read Tom Wolfe's The Right Stuff know that "[a]nyone who travels much on airlines in the United States soon gets to know the voice of the airline pilot ... coming over the intercom ... with a particular drawl, a particular folksiness" that evokes the voice of Chuck Yeager, the greatest fighter pilot of all time. (11) Well, anyone who reads law likewise hears in nearly every author the voice of John Hart Ely, the greatest pure legal writer of our time, the man who set the cadence for two generations of legal scholars.

As I read John's articles, I naturally became more curious about John the man. I soon learned that John was not just an ivory-tower academic; he also enjoyed one of the greatest lawyerly careers of our time: from his days as a law student researching Abe Fortas's brief in Gideon v. Wainwright, (12) to his service as a law clerk to Chief Justice Warren working on Griswold v. Connecticut, (13) to his time as member of the Warren Commission staff, to his years as a San Diego public defender and general counsel of the Department of...