When John T. Noonan, Jr. died last week at the age of 90, the American people lost not only a distinguished jurist, scholar, and man of letters. We lost also one the last great Christian humanists. For those, like Rod Dreher, who see no room for committed Christians in the nation’s public square, Noonan’s Erasmian life in law and literature provides a robust affirmation that yes, there is always space in secular America for truly gifted practitioners of a humanism that finds its center in the Incarnation.
For those who called him colleague, professor, or simply friend, homage must be paid to this Catholic intellectual of gentle bearing and great Irish wit. By God but he was a delightful conversationalist—never more so than at table, whether with family or friends, John presiding at one end and his drily witty wife, Mary Lee, an art historian, at the other. They spoke with the relaxed charm of the well mannered, deferential to others and always solicitous of a rousing good story and a merry laugh. These are the qualities that, unfortunately, belong to an earlier era and, in Noonan’s case, to a certain kind of Bostonian in whom such habits were once bred in the bone.
To approach John Noonan biographically can be forbidding. He graduated from Harvard summa cum laude in two years (after taking classes year-round) at age 19 with a degree in English and mentoring by Pulitzer Prize–winning biographer Walter Jackson Bate. He spent another year studying English literature at Cambridge University. And then, because (as he later wrote) he realized “that Catholicism was the largest force in my life, yet I knew so little about it,” he went on to study theology, philosophy, and canon law at the Catholic University of America, earning a PhD in 1951. His final degree was an LLB from Harvard, where he served on the Harvard Law Review.
After working on national security in Washington, D.C., Noonan returned to Boston, where he practiced law in his father’s firm and defeated a future Democratic nominee for President, Michael Dukakis, for a seat on the Redevelopment Authority in Brookline, Massachusetts. In 1960, Noonan joined the faculty of the University of Notre Dame Law School at the urging of the university’s president, Father Theodore M. Hesburgh. Six years later, he moved on to Boalt Hall, the law school at the University of California, Berkeley. In 1985, President Ronald Reagan appointed him to the United States Court of Appeals for the Ninth Circuit, where he served for thirty years, writing more than one thousand opinions and dissents.
A large part of Noonan’s intellectual influence came through his books—more than a dozen of them. His primary interest was in jurisprudence and the relationship between law and morality, to which he brought enviable skills in history, theology, philosophy, and ethics. But the specific subjects he chose were always rooted in contemporary issues and concerns. In 1965, he published his most famous book, at once classic and immediately consequential as a study in the development of doctrine: Contraception: A History of Its Treatment by the Catholic Theologians and Canonists—533 pages of dazzling historical research, unpretentious erudition, and contextual analysis that concluded by offering reasons why the papal magisterium could and should support some forms of contraception for married couples.
Contraception earned Noonan a consultant’s seat on the papal birth control commission created by Pope Paul VI to advise him on the fraught issue of birth control. Although the book helped persuade the commission to recommend lifting the church’s blanket opposition to contraception, Paul VI eventually was persuaded to ignore the majority view of his own commission. Nonetheless, Contraception immediately became a classic model of how judicious scholarship can be brought to bear on even the most vexed issues of moral and social concern. It still is.
Noonan’s next two books addressed abortion, a subject to which he would return after Roe v. Wade, and divorce. The Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia (1972), much like Contraception, traced the development and application of the Roman Church’s control of marriage to consider the circumstances under which it would be appropriate to dissolve the marital bond.
By then I knew John well enough to tease him: “For a man only recently married and a father,” I chided, “you certainly have devoted an awful lot of time to sex, marriage, and divorce.” As if to prove he had other matters on his mind, twelve years later John produced Bribes: The Intellectual History of a Moral Idea, a study that begins in Egypt two thousand years before Christ and ends with a discussion of Abscam, an FBI sting operation that sent seven U.S. Congressmen and one Senator to prison in the early 80s. Since we were friends, he felt free to call and explain why he thought I should review it in Newsweek. I said I’d read the book and consider a review. What he didn’t tell me is that Bribes is 800 pages long! I gave it a short paragraph in a roundup of notable books. It was that, I told him, or devote a whole issue of a weekly newsmagazine to bribes and their history over four millennia. Like most of Noonan’s books, Bribes is still in print and assigned classroom reading.
Noonan served on the board of the National Right to Life Committee for many years, and readers who want to see how he addressed abortion’s moral and legal dimensions should read the elegant arguments in his short book, A Private Choice: Abortion in America in the Seventies. His measured reasoning—far removed from movement zealotry—was of the kind that pro-choice constitutional lawyers like Harvard’s Lawrence Tribe could admire. Later on John devoted his energy to the history and practice of religious freedom, well illustrated by his 1988 book, The Lustre of Our Country: The American Experience of Religious Freedom.
Noonan’s career on the bench was exemplary. “John Noonan was a great man and a great judge—and unusual in that he wrote all his own published opinions,” (instead of relying on his clerks), says a former clerk, M. Cathleen Kaveny, now a distinguished professor of law at Boston College. “He recognized that his reasoning, not merely the result, would enter into the fabric of precedent on the point at hand.”
One of Noonan’s more controversial cases involved the scope of religious freedom. The defendant was an engineering and manufacturing firm whose founders had made a “covenant with God” to run a Christian faith-operated business. Noonan wrote a dissent from the appellate court’s opinion that the firm could not require its employees to attend company prayer services, even though the owners allowed them to sleep, read, or otherwise ignore the service so long as they were present.
Noonan’s dissenting opinion upheld the company’s right to exercise religion under the First Amendment. “The First Amendment,” he argued, “does not authorize Congress to pick and choose the persons or entities or the organizational forms that are free to exercise their religion”—a view that was later affirmed by the U.S. Supreme Court in the Hobby Lobby case.
Was Noonan a conservative or a liberal? Like most great minds, John transcended simple binaries. What struck Kaveny most, she recalls, “was his consistent interest in and concern for the people caught up in appellate litigation. This was particularly evident in deportation cases where very vulnerable persons found themselves in a legal contest with the federal government.” In one such case, Noonan held for a Salvadoran immigrant facing deportation who testified that she had been repeatedly beaten, raped, and threatened by a Salvadoran Army sergeant because he believed she was a political subversive. Lawyers for the Immigration and Naturalization Service argued that she was not a political subversive and so should be sent back to Salvador.
In his opinion, Noonan concluded that the woman was entitled to asylum regardless of whether she was in fact a political subversive. “In deciding whether anyone has a well founded fear of persecution or is in danger of losing life or liberty because of a political opinion,” he wrote, “one must continue to look at the person from the perspective of the persecutor. If the persecutor thinks the personal guilty of a political opinion, then the person was at risk.”
If Noonan could be a compassionate judge, he nonetheless did not regard compassion as the foremost judicial virtue. For example, in Compassion in Dying v. Washington, a case that sought to overturn a Washington State statute banning assisted suicide, Judge Noonan cited Dostoevsky’s The Idiot to bolster his opinion upholding the statute:
Compassion, according to the reflections of Prince Myshkin, is “the most important, perhaps the sole law of human existence.” … No one can read the accounts of the sufferings of the deceased plaintiffs … without being moved by them. No one would inflict such sufferings on another or want them inflicted on himself. … The desire to have a good and kind way of forestalling them is understandably evident in the declarations of the plaintiffs and in the decision of the district court. Compassion is a proper, desirable, even necessary component of judicial character; but compassion is not the most important, certainly not the only law of human existence. Unrestrained by other virtues, as The Idiot illustrates, it leads to catastrophe. Justice, prudence, and fortitude are necessary too. Compassion cannot be the compass of a federal judge. That compass is the Constitution of the United States. Where, as here in the state of Washington, a statute of a state comports with that compass, the validity of the statute must be upheld.
Noonan’s opinion was later overruled by a majority of his Appellate Court peers. But the U.S. Supreme Court later agreed with Noonan that a state can prohibit doctors from participating in euthanasia.
When Noonan moved on to senior member of the bench in 1996, his friend Kevin Starr, the prolific historian of the State of California, recognized John’s stature as a Christian humanist. “A science, however inexact, the law is a humanistic pursuit as well,” he wrote in the Journal of Law and Religion, “and no one in the past four decades has pursued the law with such humanistic fervor—a humanism enlivened by religion—as John Noonan.”
In the last two decades of his life, Noonan found time for four more books. Two were on the law. In the third, A Church That Can and Cannot Change: The Development of Catholic Moral Teaching (2005), he ventured once more through the Christian centuries to instance where and how and for what purposes the Church of Rome has been able to bring new moral truths out of the husks of old. His last, Shakespeare’s Spiritual Sonnets (2011), analyzes 22 of them as evidence of the Bard’s deeply Catholic nexus of reference and inspiration. I only wish John had asked me to review his sally into Elizabethan poetry and politics.
John Noonan rests in peace. Let us pray that this country will see the likes of his kind of Christian humanist again.
Kenneth L. Woodward is the former religion editor at Newsweek. His most recent book is Getting Religion: Faith, Culture and Politics from the Age of Eisenhower to the Era of Obama.
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