A Case for Doctrinal Development

John T. Noonan: jurist, historian, author, sage

From his own desk, law clerk Samir Bukhari can’t see John T. Noonan Jr. at work. Yet each day, through the wall, he hears what Bukhari calls the "ripping pages," a quiet, metronomic hum as Judge Noonan tears prose-filled sheet after prose-filled sheet from a yellow legal pad. (When informed of this fact, Noonan dryly asks "What else does he hear?")

During the past half-century Noonan’s pages have been transformed into dozens of scholarly articles, hundreds of legal opinions, and a string of major books ranging from a treatise on bribery to the definitive work on the history of contraception. As recently as two years ago, he published The Lustre of Our Country (University of California), an examination of religious freedom in the United States and around the world. Noonan’s fluency in history and philosophy and his shrewd eye for the telling anecdote make these publications unusually engaging. He rarely overlooks the "small and important details," explains Valparaiso University law professor Edward McGlynn Gaffney, who asks "How many other scholars can write a several-hundred-page book, with every page readable?" At age seventy-three, showing no sign of diminished energy, Noonan lectures across the country even as he hears cases as a senior judge on a court ranking just below the U.S. Supreme Court in importance, the U.S. Ninth Circuit Court of Appeals.

Productivity and brilliance are an intoxicating pair, and tributes to Noonan are accumulating in the twilight of his career. The theme at such gatherings is often Noonan’s intellectual range. His law clerks enjoy describing their initial interviews, where the conversation was more apt to light upon W.H. Auden’s poetry-Noonan majored in English as a Harvard undergraduate-than examination of their qualifications. In the 1950s, Noonan and a group of friends founded a board-game company, selling the first version of the once popular strategy game, Diplomacy. Between 1967 and 1972, he wrote a massive study of divorce, helped build a distinguished program in medieval legal studies at the University of California at Berkeley, and spearheaded early opposition to the loosening of restrictions on abortion.

He is, in one sense, a polymath. And yet there is another way to look at Noonan’s achievements. Few, if any, of the other major scholars of his generation have so obsessively ruminated on a single problem, so endlessly circled what Noonan as early as 1957 termed the relationship between "development" and "dogma" or, as he once explained it, using history, which is not theology, to illumine the "authentic tradition of the church."

In this sense, Noonan’s own development recalls Isaiah Berlin’s famous distinction between intellectual hedgehogs and foxes: Noonan is the hedgehog who spends a lifetime burrowing into one great idea, not the fox darting from topic to topic. The purpose of Noonan’s ripping pages-whether as a graduate student, lawyer, law professor, or judge-has remained constant. At the mention of Noonan’s name, one of his friendly antagonists, the even more prolific Federal Appeals Court Judge Richard Posner, immediately expresses his admiration for one of the "great scholars of modern law." But Posner is dubious about notions of moral progress (are our notions of bribery really more ethical than those of twelfth-century Egyptians?) and wonders if "there’s a benefit [for judges] to be engaged in moral philosophy."

Precisely this single-minded focus, however, has given Noonan extraordinary authority in the intertwined fields of law and religion. As a historian of Catholic moral theology he has few modern equals, as attested by the attention his work has received throughout the Catholic world. (Contraception, for example, sold a startling 35,000 copies soon after its publication and has been translated into the major European languages.) Similarly, the quality of his legal scholarship and judicial opinions prompts Harvard Law School Professor Mary Ann Glendon to place Noonan alongside Learned Hand, Benjamin Cardozo, and Oliver Wendell Holmes Jr. as "one of the legal giants of the twentieth century." Noonan’s career, Glendon adds, shatters any notion that "one cannot be a religious person and a front-rank intellectual."

Noonan’s ruddy face and accent, as much as his pinstriped suits and crisp ties, announce his Boston roots. Born in 1926, son of a prominent lawyer, Noonan attended a local prep school and enrolled, instinctively, at Harvard in 1944. Too asthmatic for military service, he graduated just two years later. Intrigued by law but leery of entering the enclosed world of the Boston law firm, he persuaded his parents to finance a year of study in England, more as a proxy for touring post-war Europe than as an opportunity for serious academic work. "I’d read, in high school, two of John P. Marquand’s novels about Boston," Noonan explains. "I read them both as warning of what a restricted life Boston could be if you fell right into its box or pattern of existence." In London he managed an interview with T.S. Eliot. In Rome, friendship with a niece of New York’s Cardinal Spellman turned into a brief audience with Pope Pius XII, baffled as to why this young American was greeting him, but gracious nonetheless.

Upon his return to the United States, Noonan decided on graduate study in philosophy at The Catholic University of America in Washington, D.C. There he stumbled upon two of the most influential Catholic intellectuals of the twentieth century, French philosopher Jacques Maritain and American Jesuit John Courtney Murray. Noonan attended a seminar offered by Maritain at Princeton, and encountered Maritain’s emphasis on the human person and his passionate insistence that Catholics should defend the moral superiority of democratic governments and the need for protection of human rights. He met Murray, as Noonan relates in an engaging autobiographical chapter of The Lustre of Our Country, after coming to doubt the morality of the Catholic view that the state should endorse the one true religion. For several American theologians, and, we now know, Vatican officials, Murray caused great uneasiness by rejecting the traditional teaching that an ideal state would promote Catholicism and limit proselytizing by non-Catholics. Error, it was said, should have no rights. Instead, Murray proposed a historical reading of nineteenth-century papal condemnations of religious freedom, explaining them as attacks on a specific, anticlerical European liberalism, not as final statements of Catholic belief. In the circumstances of the mid-twentieth century, Murray believed, the church should wholeheartedly endorse religious freedom, not deem it merely expedient in a religiously diverse society.

Noonan’s mentors at Catholic University found Murray’s view enticing. But Noonan wondered if Murray’s elegant reading of the historical record wasn’t too reassuring. How could seemingly clear papal pronouncements-Gregory XVI had called freedom of conscience an "absurd and erroneous" opinion in 1832-now be set aside? He drove to Murray’s residence at the Jesuit seminary in Woodstock, Maryland, and pursued the issue in a friendly conversation. "I felt the attraction of Murray’s position," Noonan recalls, "without being persuaded of it."

The recondite topic of usury allowed Noonan to consider the problem of doctrinal development at greater length. How could a church once willing to condemn lenders demanding interest now deposit parish collections in banks? Noonan began scouring medieval and Reformation debates on the topic, and this almost instinctive turn to history is telling. It allied Noonan with Murray’s historical investigation of religious freedom, certainly, but it also identified him as part of wider currents in European and American Catholic intellectual life. "Part of the culture of the time," explains Catholic University theologian Joseph A. Komonchak, was the emerging belief that "you can’t do serious theology or philosophy unless you are historically conscious."

In retrospect, Noonan’s interest in the development of moral theology paralleled the turn toward historical investigation of Scripture by Catholic scholars in the 1940s, along with the liturgical revival that emphasized worship in the early church and the recovery of a more complex sense of Catholicism’s medieval intellectual heritage. All of these efforts pivoted toward the past for its own sake, but also as a way of shaping the present. In the hands of French Jesuit Henri de Lubac, for example, medieval understandings of nature and grace became a plea for Catholics to engage the world beyond church walls. Another Jesuit, Bernard Lonergan, would famously define this process as the evolution of a church able to understand itself only in classical, static categories, toward one possessed of "historical consciousness."

Noonan himself hardly thought in such grand terms. Finally published in 1957 as The Scholastic Analysis of Usury, a title guaranteed to repel the casual reader, the book caused little stir beyond specialists. In what would become a typically broad sweep, Noonan traced evaluations of usury from the medieval period to the modern era. And he emphasized that "No error is more widespread than treatment of the theory [of usury] as if it had been immutable."

After receiving his doctorate, Noonan finally succumbed to the lure of the law and enrolled in Harvard Law School. There too, to his surprise, he found the problem of development pressing, as law professors and students, just like theologians, wrangled with the competing demands of precedent, foundational texts, and new situations. "Noonan’s [unusual] background in canon law," suggests Professor Glendon, "prepared him to be sophisticated in terms of statutory interpretation" as well as adept at the case-by-case analysis still dominant in American legal education.

Following his graduation from law school in 1954, Noonan decided to return to Washington for a year, accepting an appointment with the Eisenhower administration’s National Security Council, then headed by Robert Cutler, formerly the law partner of Noonan’s father. Here he rewrote and tracked position papers, with the exciting knowledge that Cutler might well present these analyses of cold-war trouble spots to the president himself. After Cutler’s resignation and return to a Boston law practice, Noonan, too, moved back to Boston.

There he worked as a corporate lawyer for five years. Still intrigued by the intellectual problem of doctrinal development, however, Noonan leapt at the opportunity to join the faculty at the University of Notre Dame law school in 1961, attracted by the university’s charismatic young president, Theodore Hesburgh. After he arrived on campus, now thirty-five and still single, he began to scout out new scholarly topics. A few of his married faculty friends, struggling with church teaching, suggested that the subject of contraception might prove diverting.

So Noonan set to work. The choice of topic was a fateful one, since the study of contraception yanked Noonan from scholarly obscurity to the center of an extraordinary Catholic debate, and also prepared him for the subsequent and ongoing struggle over abortion. By the end of the 1960s, as much as any other figure, Noonan defined one beachhead in the besieged terrain of contemporary Catholic liberalism: frustrated with church teaching on contraception but opposed to the new regime of abortion-on-demand. One Catholic law professor glumly assessed the situation in 1967, complaining that on abortion the ACLU had abandoned the "first principle of secular ethics," that "life is an absolute value." Unfortunately, the defense of fetal life was now identified as a Catholic position, and linked to a "medieval attitude on birth control."

That these issues would consume Noonan and many other Catholics was not predictable. The consensus of scholarly opinion at the beginning of the 1960s remained that Catholic couples should practice contraception only through abstinence during a certain period in the menstrual cycle, and that church teaching was (and had been and would be) unchanging. Many Catholic couples struggled with this teaching (an equal number, perhaps, ignored it), making the issue an agonizing one for couples as well as for priests in the confessional. But this simply demonstrated the importance of further instruction. As late as 1962, John Ford and Gerald Kelly, the Jesuit authors of the most influential American textbook on moral theology, felt compelled to announce that Catholic parents were not obligated to have more than four children.

Writing, as historian and friend Kevin Starr points out, "without the slightest suggestion of a writer’s block," Noonan researched and drafted Contraception, a dense, elegantly written book of 533 pages, in two and one-half years. One law school colleague at the time, Thomas Shaffer, recalls Noonan arriving each day at the faculty lunch table "immersed in his research," eager to solicit opinions on medieval notions of courtly love or the purposes of marriage.

Harvard University Press published the first edition of Contraception in 1965. Written as excitement mounted during the first years of Vatican II, and as other seemingly permanent aspects of Catholic life underwent stunning change, the book struck an optimistic note. Beginning with the ancient Egyptians and ending in the contemporary United States, Noonan again traced a twisting doctrinal path, noting that any fair reading of the history could not "look at doctrinal development as an automatic unfolding of the divine will." After detailing the emancipation of women, the acknowledgment by many theologians that procreation need not serve as the single, primary end of sexual intercourse, and the widespread support for change expressed by married couples, priests, and bishops, he concluded that "it is a perennial mistake to confuse repetition of old formulas with the living law of the church. The church, on its pilgrim’s path, has grown in grace and wisdom."

Contraception received enormous, flattering attention. (A young, and then conservative, Garry Wills flatly termed it "a classic.") As is well known, Pope Paul VI withdrew the topic of contraception from general consideration at Vatican II, and named a commission to consider the matter. As the commission assembled in Rome in early 1965, a torrent of publicity on birth control suggested the intensity of feeling on the subject. When Chicago’s Patty Crowley, one of few the women on the commission, polled other Catholic women, she received a deluge of anguished letters detailing multiple, risky pregnancies and marriages strained by enforced abstinence during fertile periods.

Appointed to the papal commission because of his new-found expertise, Noonan began his first presentation to the commission with the observation that "the matter is open enough to deserve the attentive study of the church in light of new scientific, social, and historical understanding." Ford, perhaps the commission’s most influential conservative, initially supported Noonan’s appointment. After recognizing the implications of Contraception, however, Ford argued to friends that Noonan’s work was "very one-sided, and says nothing of the essential points of difference between the cases of usury and contraception."

Working on the Roman schedule of a morning meeting, lunch, siesta, and a final session from 5 to 7 p.m., the commission met as a body, and then in smaller groups. Noonan now describes the meetings as open and honest, and regrets only that Paul VI was not invited to attend them. At the time, however, he privately expressed frustration with the conservative moral theologians, convinced that they took "texts out of their contexts and used them as some kind of absolute statement, fallen, as it were, from heaven."

Ultimately, the commission voted 52-4 to alter the traditional teaching. Pope Paul VI’s rejection of this recommendation in Humanae vitae, three years later, was devastating. Noonan himself offered only a brief lament for the "internal inconsistency" and "inadequate preparation" of the encyclical. Only years later, in an argument that even some admirers found unconvincing, did Noonan argue that the encyclical actually permitted the use of contraceptives during all but the few days that a woman was fertile during each month. Reading this essay, one senses an intense loyalty to the church-"the teaching of Humanae vitae is a given of Catholic doctrine"-combined with a tactician’s desire to keep open the possibility of future development.

By this time the abortion issue had moved to center stage in American life. For Noonan and many other Catholics, the intense debate over contraception required a rare facility in the vocabulary of sexual and medical ethics, and consequent leadership in the debate over abortion and other "life" issues. Noonan had emphasized in Contraception that a shift in Catholic teaching on birth control might strengthen-not repudiate-the core Catholic principles of sexual ethics. Legalized abortion, by contrast, struck at a central (and increasingly important) tenet of Catholic thought, the value of each individual human life.

That many Americans disagreed soon became evident, most obviously in California which witnessed an early battle over the liberalization of abortion laws in 1967. Newly married to art historian Mary Lee Bennett, Noonan moved to Berkeley the same year, lured by climate and a new position at the law school of the University of California.

He quickly enlisted in the anti-abortion ranks, testifying before both the California State Legislature and the U.S. Congress. "I would like to speak on ’Abortion in the History of the Church and Civil Law,’" he told one Cleveland priest in 1968, "because I think there is now a large organized campaign to promote abortion in this country, and I think it is important for Catholics to be informed about the roots of the church’s opposition." In 1970 he edited one of the first scholarly volumes on abortion. In 1971 he predicted that the "tide may even have turned."

Roe v. Wade (1973) demonstrated the opposite. Noonan quickly wrote a blistering attack on "raw, judicial power" and the "most radical decision ever issued by the Supreme Court." Like many anti-abortion activists, he took to comparing the Right to Life Movement, "few in numbers," to the abolitionists. In 1979, his ironically titled A Private Choice became perhaps the most powerful scholarly analysis of the way abortion might cheapen respect for all life, and how seemingly individual decisions reverberated in society.

This most activist phase of Noonan’s career slowly faded. Three children, John, Becky, and Susannah, provided a new center to the household, and he and Mary Lee developed friendships in San Francisco and Berkeley. The Noonans’ home, perched in the hills above the University of California campus, became the setting for dinner parties and birthday celebrations. He joined the Chit-Chat Club, a venerable San Francisco discussion group, and began a reading group for Catholic academics.

The Noonans remained in Berkeley but not, in a sense, of it. Theirs was the Berkeley of weekly walks in the nearby hills and delight in the cosmopolitan Catholic community at Saint Mary Magdalene, not the People’s Republic of yore. Mary Lee still rolls her eyes at the mention of some of the period’s political-and liturgical-radicals, and the judge, although he demurs from discussion of his voting preferences, seems less ready than the average Berkeley resident to cast Republicans into San Francisco Bay.

Honors and responsibilities mounted. Elected to the American Academy of Arts and Sciences in 1976, he also held fellowships at the Institute for Advanced Study in Princeton, the Woodrow Wilson Center in Washington, and the Center for Advanced Studies in the Behavioral Sciences at Stanford. Service on the governing board of the Graduate Theological Union at Berkeley offered Noonan an opportunity to mingle with leading Catholic theologians, and he enjoyed meeting friends at the Holy Cross House or the Franciscan School of Theology before heading up the hill to his home at the end of the day. A long stint on the Harvard Board of Overseers immersed him in the inner workings of his alma mater.

The books continued to issue forth. His interest in the development of doctrine was again obvious in Persons and Masks of the Law ( 1976), The Antelope, about a slave-ship captured in 1820 (1977), and Bribes (1984). These books placed less emphasis upon formal exposition of doctrine in the style of the mandarin intellectual historian, and more on storytelling, on the individual concealed beneath the spare facts of a particular court case. Here he returned to Jacques Maritain, citing the French philosopher’s emphasis on the human person, and calling for legal structures that balanced impartiality with recognition of individual circumstance.

In 1985 Ronald Reagan nominated Noonan to a seat on the U.S. Ninth Circuit Court of Appeals. Surprised, but delighted, Noonan brushed aside complaints that his well-known views on abortion should deter him from accepting the nomination. "All law incorporates morality," he told one interviewer. "Whenever one is dealing with law, one is dealing with a sense of good. The notion that some law isn’t moral is just a fiction." A representative from the Federation of Women’s Lawyers challenged this claim at Noonan’s Senate confirmation hearing, arguing that his "moral absolutism" and "intemperate zeal" on abortion should prove disqualifying. Senator Bob Packwood (R-Oreg.) threatened to hold up the confirmation process, describing Noonan as "avid antichoice and pro right-to-life." Ultimately, however, the nomination sailed through the Senate, and Noonan moved his office from the Berkeley campus to downtown San Francisco.

Once on the bench, Noonan disappointed both liberals and conservatives. Along with other colleagues, he stirred enormous controversy by refusing to authorize the execution of Robert Alton Harris in 1994. Later, after the Supreme Court permitted the execution, he wrote an article pondering the "buried religious dimensions" in all discussions of capital punishment, and expressing sharp dissatisfaction with a Supreme Court "absolute for death."

Noonan also granted asylum to Olympia Lazo-Majano, a Salvadoran refugee with a "well-founded fear" of persecution in her native country, and refused to deport an alien, Jesus Escobar-Grijalva, unable to obtain adequate legal representation. According to Robert Jobe, a San Francisco attorney specializing in immigration issues, Noonan’s sympathy for immigrants seeking asylum distinguishes him from the "majority of Republican appointees." Noonan’s law clerks point with pride to his habit of addressing petitioners, even petitioners who are not citizens, by their full name, giving them a dignity in his courtroom rarely available in the wider legal world.

Noonan’s most celebrated judicial opinion, on assisted suicide, returned him to the familiar territory of dogma and development. That the case, Compassion in Dying v. Washington, fell by chance to Noonan in 1995 was no little irony, and he pounced on the lower-court opinion, which declared assisted suicide a matter of fundamental "dignity and autonomy," with almost unseemly gusto. One can hear the echoes of earlier discussions of abortion in Noonan’s scathing attack on a federal judiciary doubling as a "floating constitutional convention" and willing to create a right "unknown to the past and antithetical to the defense of human life."

As in the abortion debate, opponents of Noonan’s decision accused him of enacting his own religious views into law. But this time, in contrast to Roe v. Wade, the Supreme Court agreed with his assessment, and ruled that the state of Washington could legitimately decide that protection of life outweighed a putative "right to die."

Noonan’s eventual departure from the public stage will signal a changing of the guard of sorts in American Catholic life. Noonan met Mary Lee at a Cambridge, Massachusetts, cocktail party in 1964, hosted by Michael Novak, then a journalist. Commonweal columnist and author Sidney Callahan had met Noonan in the same Cambridge circles a few years earlier, when they both participated in a reading group on Protestant theology. "We tried to develop ourselves intellectually," she remembers. "Because Catholics were not assimilated and were somewhat persecuted and of low status at the time, we had to give each other a great deal of emotional support." In 1963, once-forbidding Harvard hosted a series of discussions on Vatican II that included a set of lectures by one of the council’s most important figures, Cardinal Augustin Bea, and appearances by then-little-known priests named Andrew Greeley, Charles Curran, and Robert Drinan. A string of speakers invaded the Harvard Catholic Student Center, addressing Catholic students on topics ranging from contraception to urban renewal. Jill Ker Conway’s lovely memoir, True North, hints at the optimism and excitement of these young Cambridge Catholics, newly at home in the prestigious centers of American academic life, and poised to assume leadership roles within the intellectual life of the church.

Could a comparable group now appear? Noonan is well aware that many Catholic young people lack the vocabulary, or the interest, to join discussions about the state of their church. And the guarded criticism that Noonan now receives from more radical legal scholars is that he remains too much the establishment judge, too little the prophet. If capital punishment and abortion are wrong, in other words, can one administer justice in a legal system that condones both? Does Noonan place too much emphasis on the compassionate judge and not enough on an immoral legal system? Noonan is too quick, argues Duke law professor H. Jefferson Powell, to accept the "coercive nature of the state, while overstating egregiously the significance of having individual Christians exercise the state’s power."

In the current ecclesiastical climate, Noonan’s emphasis on development is also controversial. Some Catholics concede that the church admits the principle of doctrinal development, but they accuse Noonan, in Richard John Neuhaus’s words, of too often equating development with "a change, or even a reversal, of doctrine." At a recent meeting of the Catholic Common Ground Initiative, Noonan and theologian Avery Dulles had a polite, but sharp, exchange on the subject, with Noonan again insisting that "the record is replete with mistakes-the faithful can’t just accept everything that comes from Rome as though God had authorized it."

Noonan enjoys parrying these criticisms, and is generally optimistic about Catholicism’s future. "I believe that God is with us," he says, noting how Catholicism has spoken, and continues to speak, "to the deepest feelings of millions of human beings." His own career suggests the possibility of extraordinary (if at times critical) service to church and nation, and he delights in the new openness with which Catholics and non-Catholics discuss matters of common concern. "What I really admire about him," explains Cathleen Kaveny, a former law clerk of Noonan’s and now a University of Notre Dame law professor, "is that he takes seriously the notion that truth, goodness, and beauty are interconnected; truly pursuing truth, you cannot go wrong."

Whatever disagreements he might have with John Paul II, Noonan finds the pope’s travels and ability to admit error "wonderfully invigorating." He worries about young lawyers "disillusioned" by experience with law firms obsessed with billable hours, but raves about the idealism and ability of his own clerks.

Noonan offers these opinions in his office, illuminated by soaring windows that open onto the San Francisco cityscape, steps away from the courtroom he supervises. Teetering piles of books and articles cover the available surfaces. He has recently begun talking to leading neuroscientists about developments in their field, and is mulling how new understandings of the brain might affect legal conceptions of motivation and responsibility.

"You have to be a bit of a fanatic to write a book," he announces cheerfully. But he admits that, yes, he is thinking of writing another one.

Published in the 2000-11-17 issue: 
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John T. McGreevy is the I.A. O'Shaughnessy Dean of the College of Arts and Letters and Professor of History at the University of Notre Dame.

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