A CASE OF DOCTRINAL DEVELOPMENT -- John T. Noonan: Jurist, Historian, Author, Sage

Article excerpt

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. …