A CASE OF DOCTRINAL DEVELOPMENT — John T. Noonan: jurist, historian, author, sage

Commonweal, Nov 17, 2000 by John T. McGreevy

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."