Remembering John T. Noonan

Jurist, Historian, Author, Contributor

John T. Noonan, Jr., the judge on the Ninth Circuit Court of Appeals who wrote the majority opinion in the first right-to-die case ever decided by a federal appeals court, died on April 17 at the age of ninety. Author of Contraception (1965) and A Church that Can and Cannot Change: The Development of Catholic Moral Teaching (2005), among many other works legal, scholarly, and otherwise, he and his writing were often the subject of Commonweal articles and posts, while Noonan himself was an occasional contributor to the magazine. 

In this profile of Noonan from 2004, John McGreevy hailed Noonan’s combination of “productivity and brilliance,” and while not disagreeing with the general assessment of Noonan as a polymath, he insisted there was

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 the same piece, McGreevy covered Noonan’s time on the Ninth Circuit Court (a tenure in which he “disappointed both liberals and conservatives”), from his appointment by Ronald Reagan in 1985 to his opinions on capital punishment, assisted suicide, and asylum.

John T. Noonan / photo courtesy Ninth Circuit Blog
John T. Noonan / photo courtesy Ninth Circuit Blog

Writing in Commonweal in 2009, Cathleen Kaveny said Noonan’s “contributions to both the bench and the academy are prodigious” and wrote of his work that it “provides the concrete evidence that demonstrates the truth of Alasdair MacIntyre’s tradition theory with respect to theology and to law. A tradition, according to MacIntyre, is a historically extended argument about the goods internal to that tradition, the practices that sustain those goods, and the virtues necessary to appreciate them.”

In “Liberalism Doesn’t Exist,” which Noonan contributed to the 1999 Commonweal forum The Crisis of Catholic Liberalism, he characterized “liberalism” as a “reified or personified concept” while detailing his concerns with it:

If you try to locate some set of ideas, they’re pretty incoherent. In the nineteenth century, secular liberalism put much stress on economic freedom. ...

As the same word evolved in this century, it came to cover people who believe in active government. The liberals were in FDR’s New Deal, so there had to be a great deal of government control. Eventually, as the term is used today, it applies mostly in secular terms to freedom from sexual restraints.

It’s an incoherent term. I think that the same thing is true when it’s moved over to the religious sphere and Catholic liberalism is spoken about. If it is moved left … then you get people who are so ardent in their desire to help the poor that they favor a heavy amount of state action. That’s just the opposite of earlier views. It’s an unstable concept and I think on the whole an unfortunate one.

Circuit Judge Diarmuid O’Scannlain, who joined Noonan in the Compassion in Dying v. State of Washington ruling on physician-assisted suicide, remembered him not just as a brilliant legal mind but as “a Renaissance man.” In this Commonweal piece from 2008, Noonan wrote on what he took to be the reluctance of Shakespeare scholars to examine the Bard’s religious leanings. After all, he said,

almost everything that could be discovered about Shakespeare—his family, his teachers, his schoolmates, his publishers, his performers, his stages, and his sources—has been presented, debated, and evaluated. His works have been subjected to even more thorough scrutiny. The range of meaning of every word in the texts has been commented on. Every likely reference to his contemporaries has been marked, every historical and literary allusion recorded. And his religion makes no difference?

… If Shakespeare wasn’t a Catholic, he must have been a Protestant or an agnostic or an atheist or something. A reader seeking to understand what Shakespeare wrote needs to know the vantage point from which he saw the world. To suppose that everything about Shakespeare matters except his religion is the last resort of a lazy kind of secularism. As the old Protestant prejudices fall away and the secular citadel crumbles, the study of Shakespeare ought to be open to new assessments of the Bard’s deepest commitments.

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