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Nicholas D. SawickiNovember 23, 2022
Judge John T. Noonan Jr. gives the commencement address in 2009 at the University of Notre Dame in Indiana. (CNS photo/Matt Cashore, University of Notre Dame)

“Persons speak to persons, heart unmasked to heart.” This is not the conclusion of some poetic romantic, nor of a rambling theologian. This is a typical conclusion found at the end of the frequently lengthy works of the late John T. Noonan, federal judge, advisor to presidents and popes and as earnest as any public-facing Catholic intellectual of the 20th and 21st centuries.

John T. Noonan was perhaps one of the most lauded, influential and recognizable Catholics engaged in the public square in the last 50 years. Noonan was a consummate polymath, and his writings covered areas such as bribery, slavery, jurisprudence, religious freedom, ecclesiology and more. He was also a historian of morality and its development. In each of his works, Noonan, who died five years ago this past April, took the value and conditions of the human person as his central point of reference.

Noonan’s literary output was prodigious: 15 books, hundreds of public and law review articles and lectures and more than 1,000 opinions from his seat on the bench of the United States Court of Appeals for the Ninth Circuit. And the thread throughout much of his work is clear: that lived experience and realities, while shifting between time and place, are central to the corporeal nature of the Catholic tradition—not placed above but in tandem with the principles, practices, teachings and theories of our faith and society. To Noonan, people mattered. Each was a loved creation that deserved respect and justice—a fact evident in even his most academic writing.

In each of his works, John T. Noonan took the value and conditions of the human person as his central point of reference.

A rising star

Born into a legally-inclined family in Boston in 1926, Noonan was injected into the Brahmanic culture from childhood. He attended the Rivers School before graduating from Harvard College, summa cum laude, at 19. From there, Noonan went on to study at the other Cambridge and tour Europe. Although raised Catholic, he was inspired while abroad to learn more about his faith’s intellectual tradition. Upon returning, Noonan enrolled in the graduate philosophy program at The Catholic University of America, studying theology under the tutelage of Fathers Edmund Benard and Eugene Burke. He completed his doctorate in philosophy in 1951 with the doctoral dissertation The Scholastic Analysis of Usury, and graduated from Harvard Law School three years later.

From 1954-55, Noonan served on the special staff of the National Security Council and then entered private practice with his father’s law firm in Boston. In 1961, Theodore Hesburgh, C.S.C., recruited Noonan to teach at Notre Dame Law School. Noonan’s intellectual rigor, effective writing style and penchant for being the right pen at the right moment attracted attention from the Holy See. As a result, he addressed the fourth session of the Second Vatican Council for two hours on the history of the church’s position toward contraception.

This interest inevitably developed into his second book, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists (clocking in at a whopping 631 pages), which then led to Noonan’s appointment as a historical consultant to the papal commission on contraception and birth control.

To Noonan, people mattered. Each was a loved creation that deserved respect and justice—a fact evident in even his most academic writing.

An author and a teacher

Meanwhile, in 1966, Noonan moved to Boalt Hall—the School of Law of the University of California at Berkeley. There, Noonan defended his first high-profile religious-based civil liberties case. In 1968, John Negre claimed conscientious objector status under the auspices of the Catholic Church’s just war theory, arguing that the Vietnam War was an unjust conflict. Noonan championed Negre’s case for several years, ultimately losing before the Supreme Court in 1971. This would be the first of many forays into issues surrounding civil liberties and religious freedom.

Throughout this period, Noonan continued to author topical and serious studies on important issues—especially in the years immediately following Vatican II. In 1970, he published The Morality of Abortion: Legal and Historical Perspectives; two years later,he published Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia. His involvement in these hot-button issues in the church and secular world put Noonan in the vanguard of the post-conciliar church and civil society.

However, he was not a provocateur. Noonan focused on honesty and continuity. Thorough but not pedantic, Noonan’s work is sober—clear to the faults of humanity but also enamored of the beauty of a tradition he sought to not only uphold, but build upon. Noonan was not afraid of a rhetorical flourish, and his style helps carry the reader happily along through some academic drudgery. And his worldview can best be described as Whiggish—a mid-century American optimism, sure that society is on a march toward progress and things will keep getting better.

In 1976, Noonan published what many would consider his landmark work in the legal profession: Persons and Masks of the Law: Cardozo, Holmes, Jefferson and Wythe as Makers of the Masks. Based on Noonan’s speech for the annual Oliver Wendell Holmes Jr. Lecture at Harvard Law School in 1972, the book makes no bones about the necessity of the legal profession to force itself to see those before them as real people, not fictitious figures to which laws are to be applied without any consideration for what true justice entails.

“Good purposes,” Noonan wrote, “do not exist in some Platonic realm; they exist now in living human persons.”

Noonan uses the term “masks” to mean “a legal construct suppressing the humanity of a participant in a process.” Particularly, Noonan argues that these “masks” created by past jurists such as Holmes, Benjamin Cardozo and others need not be adhered to for the sake of adherence. “Good purposes,” he wrote, “do not exist in some Platonic realm; they exist now in living human persons.” This approach, that the law must look at the person in front of it when considering a just outcome, was to become a hallmark of Noonan’s own approach—marrying his humanism to his faith.

Noonan continued to write extensively, and his style continued to develop. His style became more Churchillian—he hammers his point over and over with the evidence culminating in such a way that the resulting conclusion must be taken as fact. Noonan’s examples are exhaustive, but not exhausting. For example, in his magisterial Bribery: The Intellectual History of a Moral Idea, Noonan illustrates over 500 pages with details and examples from nearly every time and culture known to humanity (at least from the Akkadians to Oklahoma in the 1970s) what exactly constitutes a bribe and what does not (one major takeaway for Noonan is the inability to distinguish a bribe from a political contribution).

In such works, the number of asides and minutiae included make them all the more interesting. Even in his slimmest works, the cast of characters and preciseness of detail provide fascinating mental imagery. In his 1990 work The Antelope: The Ordeal of the Recaptured Africans in the Administrations of John Quincy Adams & James Monroe, you have on one page Portuguese Abbé Correia counseling Thomas Jefferson; on another, descriptions of yellow fever controls in the port of Savannah in the 1820s. And still, you have details on public corruption and nuances of 18th-century admiralty law. Like the best of authors, Noonan sometimes forgets that the reader does not know as much as the author.

Focusing on marshaling evidence to effectively prove his point (unsurprising for a jurist), Noonan sometimes leaves the reader hanging in wonder. For example, in Persons and Masks of the Law, he dedicates numerous pages to the lasting effects of George Wythe. Chancellor of the Commonwealth of Virginia, a signatory to the Declaration of Independence and the first law professor in the United States, Wythe was the mentor to presidents Thomas Jefferson and James Monroe as well as chief justice John Marshall.

In discussing the impact that Wythe’s legal philosophy had on his pupils, and by extension the American legal system, Noonan begins a sentence midway through a paragraph with “After Wythe’s murder…” without mentioning anything about said murder before or after it—maddening from a reader’s standpoint. Noonan did not let every good story get in the way of his narrative. He had points to be made.

Noonan’s sense of jurisprudence—rooting out “the masks”—helped a new generation of legal scholars recalibrate their thinking.

Noonan the jurist

In 1985, Noonan was appointed to the federal bench by President Ronald Reagan. Over the next 32 years, Noonan would surprise and dismay conservatives and liberals alike. He ruled against assisted suicide in Oregon as a violation of due process; allowed political asylum for those fleeing Latin American countries; rejected capital punishment in light of intellectual disability; dissented when corporations were denied rights regarding religious liberty (famously coming to pass later in the Burwell v. Hobby Lobby Stores, Inc. ruling); rejected violations of privacy in the home by the government; and joined in blocking an Arizona law that indiscriminately targeted immigrants.

In all of these opinions, Noonan’s writing remains as clear as ever. It would be a mistake to sever these opinions from Noonan’s canon, as they so clearly illustrate the man’s rigorous intellectualism coupled with a deep-seated understanding that the law is meant to serve justice, and justice is what should be pursued—not in the abstract, but in concrete ways.

As the French writer Anatole France notes in his 1894 work The Red Lily, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” This is, at its core, the absurd mask of fairness that Noonan attempts to discard. His tenure on the bench adheres as closely as possible to the premises he outlined in Persons and Masks of the Law—that a law equally applied regardless of circumstance can have an unjust effect that negates the value of the person.

Take Noonan’s ruling in United States v. Johnson (Ninth Circuit 1992). The case was relatively straightforward. A group of women, found guilty of being involved in drug trafficking cases, were appealing their sentence because they only acted in duress—they had been systematically abused and beaten into performing the illegal acts. There was no doubt they were guilty of the crime. The question at hand was whether or not the sentence they received was just in light of the circumstances.

The law for drug trafficking in this instance was explicit. Noonan affirmed all of the convictions, but remanded all of the cases for resentencing. There is a great amount of legalese in the opinion, but Noonan ultimately brings it back to the persons involved: “What is required is for the fact-finder to determine whether, given the experience and psychological makeup of this defendant, she feared to leave her criminal ways and obeyed from fear the criminal who directed her conduct.” There is no murkiness. The conditions, intentions and situational circumstances are a key factor in human conduct, and it must be taken into account. The person, with all of his or her frailties, must be considered.

Noonan’s sense of jurisprudence—rooting out “the masks”—helped a new generation of legal scholars recalibrate their thinking. He left an indelible mark on the legal tradition and set a prominent example of what a consistent judicial ethic and broad intellectual interest can bring to the bench. “Those who suppose the legal system is a self-subsistent set of rules existing outside of its participants and constraining lawyers and judges to act against their consciences will always be prevalent…” writes Noonan in The Antelope. “But every so often in a human heart the ice will crack, and a human person will acknowledge his responsibility for other human persons he has touched.”

An appointment to the judiciary was not going to get in the way of Noonan’s robust academic writing. During his early tenure on the court, he ventured into issues of religious liberty with a series of case studies in The Believer and the Powers That Are in 1987. This was followed by The Lustre of Our Country: The American Experience of Religious Freedom in 1998 and Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government in 2001. He also made significant contributions in the area of legal ethics during this time.

Assuming senior status on the court in 1996, he did not stop hearing cases until his death in 2017. With this status, Noonan assumed the privilege of senior judges—he was not above throwing a few black-cloaked elbows when necessary. His later work on sovereign immunity, particularly in Narrowing the Nation’s Power: The Supreme Court Sides with the States, was the equivalent of lobbing Greek fire at the Supreme Court. Noonan pulled no punches when he wrote, “The results I criticize were reached largely, although not wholly, by means of the doctrinal devices… which have no footing in the Constitution. Remove these obfuscations, it will be clear that the court’s decisions do not survive the test of serving constitutional purposes.” Harsh words for the highest court.

His last major work on the church, and perhaps one of his greatest contributions, came in 2005 with A Church That Can and Cannot Change.

Noonan the Catholic

Just as Noonan never stopped writing about the law, he never stopped engaging the church—and the church never stopped engaging him. He continued to churn out articles, reviews and interviews with Catholic publications. In 1984, he received the distinguished Laetare Medal from the University of Notre Dame; in 1987, he received the Campion Medal from America magazine; he was elected to the College of Fellows of the Dominican School of Philosophy and Theology in 2009, and in 2013 he received the Civitas Dei Medal from Villanova University.

His last major work on the church, and perhaps one of his greatest contributions, came in 2005 with A Church That Can and Cannot Change. In it, Noonan reverts back to his trademark consistency: he marshals evidence, determining and dating the changes within the Catholic Church that have occurred, seeking out and displaying the continuities where they actually exist. “Change is not a thing to be ashamed of, to be whispered about, to be disguised or held from the light of day,” writes Noonan. “It has been the way of the life of the Church… The new and the old cannot in life be neatly distinguished as the old slowly comes to fruition in the new.”

Life, for Noonan, is not static. Circumstances change, culture and societies develop, and we should not abandon traditions of truth and life while meeting the challenges of the present. Conversely, we should not adhere to those same traditions if that means failing to meet the challenges of the present—a living faith retains its nature but can adapt its character.

In his last book, Shakespeare’s Spiritual Sonnets, Noonan brings the experience of age and lifelong curiosity to the forefront. In his exploration of Shakespeare’s faith life, we catch glimpses of Noonan’s own interior life. He closes the work by highlighting the elements present in Shakespeare’s sonnets that encapsulate the paradoxes of faith:

The soul thrives at the expense of the body’s decay; the Church lives in the death of her members… the love between God and man can be constant yet grow; material symbols can be spiritual realities; in a piece of bread and a cup of wine God gives himself to the believer.

Noonan lived in, embraced and interrogated these paradoxes of faith. His writings indicate a mind that was constantly questioning, adapting and challenging the church and society to live more authentically as themselves—not to hide behind masks and contrivances to remove ourselves from the messiness of the world. His life’s work, to quote St. Paul in his Epistle to the Philippians, was oriented so that Noonan’s own pursuit of love “abound more and more in knowledge and in insight of every kind so that you test what is vital.”

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