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."