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John T. Noonan Jr.

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Not to be confused withJohn Noonan (analyst)orJohn Gerard Noonan.
John T. Noonan Jr.
Senior Judgeof theUnited States Court of Appeals for the Ninth Circuit
In office
December 27, 1996 – April 17, 2017
Judge of theUnited States Court of Appeals for the Ninth Circuit
In office
December 17, 1985 – December 27, 1996
Appointed byRonald Reagan
Preceded bySeat established by 98 Stat. 333
Succeeded byMarsha Berzon
Personal details
Born
John Thomas Noonan Jr.

(1926-10-24)October 24, 1926
Boston,Massachusetts
DiedApril 17, 2017(2017-04-17)(aged 90)
Berkeley,California
SpouseMary Lee Bennett (m. 1967)
Children3
EducationHarvard University(BA,LLB)
St John's College, Cambridge
Catholic University of America(MA,PhD)

John Thomas Noonan Jr.(October 24, 1926 – April 17, 2017) was aUnited States circuit judgeof theUnited States Court of Appeals for the Ninth Circuit.

Personal and education[edit]

Born inBoston,[1]Noonan enteredHarvard Universityin 1944 and graduated summa cum laude two years later with aBachelor of Artsin English.[1][2][3]

While at Harvard he wrote for theHarvard Crimsonand was elected toPhi Beta Kappa.[2][3]After a year atSt. John's College, Cambridge,Noonan matriculated atCatholic University of America,from which he received aMaster of Artsin 1949 and aDoctor of Philosophyin 1951, both in philosophy.[4][5]In 1954, he received aBachelor of LawsfromHarvard Law School,where he served on theHarvard Law Review.[4][5]Noonan was married to art historian Mary Lee Noonan (née Bennett) from 1967 until his death.[3][6][7]They had three children.[7][8][9]

Professional[edit]

From 1954 to 1955, Noonan worked as Special Staff to theUnited States National Security Council,assistingRobert Cutler,then theNational Security Advisor.[4]In 1955, Noonan entered private practice, working for the Bostonlaw firmof Herrick & Smith.[2]From 1958 to 1962, he served as Chairman of theBrookline, MassachusettsRedevelopment Authority, after defeatingMichael Dukakisin an election.[2][10]

In 1961, Noonan was invited to join the faculty at theNotre Dame Law Schoolby the ReverendTheodore Hesburgh.[10]Noonan was tenured there three years later.[2]Noonan was appointed, largely on account of his bookContraception: A History of Its Treatment by the Catholic Theologians and Canonists(1965), as a historical consultant to the papal commission established byPope Paul VI,whose recommendation to relax the ban onbirth controlwas then overruled.[10]In 1966, Noonan moved toBoalt Hall,the law school of theUniversity of California, Berkeley,where he became Robbins Professor of Law Emeritus.[2][4][11]

While at Berkeley, Noonan represented John Negre, a Catholicconscientious objectorwho insisted that the Church'sjust war theoryforbade participation in theVietnam War.[12]Although JusticeWilliam O. Douglasinitially ordered the Army not to ship out Negre, that stay was removed by the full U.S. Supreme Court on April 21, 1969.[13]Noonan continued to file briefs, but, after hearing argument, the Supreme Court ruled against Negre inGillette v. United States(1971).[14]

Noonan was the 1984 recipient of theLaetare Medal,awarded annually since 1883 by Notre Dame University in recognition of outstanding service to the Roman Catholic Church through a distinctively Catholic contribution in the recipient's profession. Noonan has served as a consultant for several agencies in the Catholic Church, including Pope Paul VI's Commission on Problems of the Family, and the U.S. Catholic Conference's committees on moral values, law and public policy, law and life issues. He also has been director of theNational Right to Life Committee.[15]

Federal judicial service[edit]

On October 16, 1985, PresidentRonald Reagannominated Noonan to the newly created 27th seat on theUnited States Court of Appeals for the Ninth Circuit,created by 98 Stat. 333.[4]Noonan was confirmed byUnited States Senateon December 16, 1985, and received his commission the following day.[4]He tooksenior statuson December 27, 1996 and served the Court until his death in 2017.[4]

Law clerks[edit]

Noonan's former law clerks include United States District JudgeBrian Morris,[16]formerWhite HouseChief Ethics Counsel andUniversity of MinnesotaProfessorRichard Painter,[17]California Superior Court Judge Allison M. Danner,[18]University of WashingtonProfessorMary Fan,[19]Boston College Law SchoolProfessorCathleen Kaveny,[20]NPR hostAilsa Chang,[21]poet and lawyerMonica Youn,[22]and Dean ofWashington University School of LawNancy Staudt.[23]

Noteworthy rulings[edit]

  • Lazo-Majano v. INS,813 F.2d 1432 (9th Cir. 1987). Noonan, joined by JudgeHarry Pregerson,held that Olimpia Lazo-Majano's abuser, a Salvadoran army sergeant who had repeatedly beaten, raped, and threatened her, had imputed to Lazo-Majano the political opinion that she was a subversive. Lazo-Majano had, therefore, suffered persecution on account of her political opinion, which entitled her to asylum. Noonan wrote:

    Even if she had no political opinion and was innocent of a single reflection on the government of her country, the cynical imputation of political opinion to her is what counts under both statutes. In deciding whether anyone has a well-founded fear of persecution or is in danger of losing life or liberty because of a political opinion, one must continue to look at the person from the perspective of the persecutor. If the persecutor thinks the person guilty of a political opinion, then the person is at risk.

At the 30th anniversary of the Harvard Immigration & Refugee Clinical Program, at which Noonan gave the keynote address, Harvard Law School Clinical ProfessorDeborah Ankernoted that the Lazo-Majano decision had inspired all her work.[24]
  • EEOC v. Townley Eng'r & Mfg. Co.,859 F.2d 610 (9th Cir. 1988). The Ninth Circuit held that Townley Engineering and Manufacturing Company, a closely held corporation whose founders made a covenant with God that their business "would be a Christian, faith-operated business," could not require employees to attend prayer services. The company was indifferent to whether employees prayed: employees could, if they chose, wear earplugs, read, or sleep. Noonan dissented. Anticipating theSupreme Court of the United States's opinion inBurwell v. Hobby Lobby,573 U.S. __ (2014), Noonan wrote:

The First Amendment, guaranteeing the free exercise of religion to every person within the nation, is a guarantee that Townley Manufacturing Company rightly invokes. Nothing in the broad sweep of the amendment puts corporations outside its scope. Repeatedly and successfully, corporations have appealed to the protection the Religious Clauses afford or authorize. Just as a corporation enjoys the right of free speech guaranteed by the First Amendment, so a corporation enjoys the right guaranteed by the First Amendment to exercise religion. The First Amendment does not say that only one kind of corporation enjoys this right. The First Amendment does not say that only religious corporations or only not-for-profit corporations are protected. The First Amendment does not authorize Congress to pick and choose the persons or the entities or the organizational forms that are free to exercise their religion. All persons--and under our Constitution all corporations are persons--are free. A statute cannot subtract from their freedom.

— Id.at 623 (citations omitted)
  • Harris v. Vazquez,901 F.2d 724 (9th Cir. 1990). Noonan stayed the execution ofRobert Alton Harris,holding that a hearing should be held to determine whether Harris had received competent psychiatric assistance in his defense.[25]Some lauded Noonan's ruling. TheLos Angeles Times'editorial board wrote, "By granting convicted killerRobert Alton Harrisa stay of execution Friday, Judge John Noonan of the U.S. Court of Appeals not only vindicated Americans' traditional confidence in the integrity of the federal bench but also demonstrated the difficulty of imposing a death sentence with complete confidence in its fairness. "[26]Others did not. California Governor George Deukmejian stated at a press conference that he "share[d] with most Californians disappointment and great frustration with the action taken by the Court."[25]Ultimately, theSupreme Court of the United Statesordered the Ninth Circuit to stop issuing stays of execution,seeMiscellaneous Order, 503 U.S. 1000 (1992), and Harris was executed.[27]
  • United States v. Johnson,956 F.2d 894 (9th Cir. 1992). Noonan held that a defendant was permitted to introduce battered woman's syndrome in an attempt to mitigate her sentence for a drug offense:

    Our own law recognizes that for a substantial period of time a brutal man may subject women to severe psychological stress such that they failed to escape or cry out for help when in a public place because they lacked sufficient ego strength, self-confidence and willpower when they were in the threatening shadow of [the man's] complete domination over them.... [W]hat 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.

  • Compassion in Dying v. Washington,49 F.3d 586 (9th Cir. 1995).[28]Noonan, joined by JudgeDiarmuid O'Scannlain,reversed District JudgeBarbara Jacobs Rothsteinafter she found Washington state law banning assisted suicide violated the Constitution'sDue Process Clause.Noonan ended the opinion:

    Compassion, according to the reflections of Prince Myshkin, is "the most important, perhaps the sole law of human existence."Feodor Dostoevsky,The Idiot,292 (Alan Myers, trans.) (1991). In the vernacular, compassion is trumps. No one can read the accounts of the sufferings of the deceased plaintiffs supplied by their declarations, or the accounts of the sufferings of their patients supplied by the physicians, without being moved by them. No one would inflict such sufferings on another or want them inflicted on himself; and since the horrors recounted are those that could attend the end of life anyone who reads of them must be aware that they could be attendant on his own death. The desire to have a good and kind way of forestalling them is understandably evident in the declarations of the plaintiffs and in the decision of the district court. Compassion is a proper, desirable, even necessary component of judicial character; but compassion is not the most important, certainly not the sole law of human existence. Unrestrained by other virtues, asThe Idiotillustrates, it leads to catastrophe. Justice, prudence, and fortitude are necessary too. Compassion cannot be the compass of a federal judge. That compass is the Constitution of the United States. Where, as here in the case of Washington, the statute of a state comports with that compass, the validity of the statute must be upheld.

The case was reheard by the court sittingen banc—which, in an opinion by JudgeStephen Reinhardt,came to the opposite conclusion and affirmed the District court.[29]The Ninth Circuit was then reversed by theSupreme Court of the United Statesunanimous in judgment inWashington v. Glucksberg(1997).[30]
  • United States v. Kyllo,190 F.3d 1041 (9th Cir. 1999).[31]Ninth Circuit JudgeMichael Daly Hawkins,joined byMelvin T. Brunetti,held that the government's use of a thermal imager was not a "search" within the meaning of theFourth Amendment to the United States Constitution.Noonan dissented. Comparing the thermal imager to a telescope, Noonan wrote that "[i]n each case the amplification of the senses by technology defeats the homeowner's expectation of privacy. The government is not entitled to defeat this expectation by technological means."Id.at 1048. InKyllo v. United States(2001), the Supreme Court agreed with Noonan, and reversed by a 5–4 vote.[32]
  • United States v. Arizona,641 F.3d 339 (9th Cir. 2011).[33]The Ninth Circuit JudgeRichard Paez,joined by Noonan and partially byCarlos Bea,upheld a decision by District JudgeSusan Ritchie Bolton,which blocked parts of theArizona SB 1070law targeting immigrants. Concurring, Noonan wrote: "For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt."[34]That judgment was partially affirmed by the U.S. Supreme Court inArizona v. United States(2012), by a vote of 5-3.
  • United States v. Black et al.,733 F.3d 294 (9th Cir. 2013). The court affirmed the denial of defendants' motions to dismiss their convictions. The defendants had argued that in scripting from start to finish a reverse sting operation, the government had overreached. Noonan dissented, writing:

    Massively involved in the manufacture of the crime, the ATF's actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court.

The majority, consisting of JudgesRaymond FisherandSusan Graber,denied defendants' petitions for rehearingen banc.JudgeStephen Reinhardt,joined by Chief JudgeAlex Kozinski,dissented from the denial of rehearingen banc.Reinhardt wrote:

TheBlackcases require us to address the limits on how our government may treat its citizens. They pose the question whether the government may target poor, minority neighborhoods and seek to tempt their residents to commit crimes that might well result in their escape from poverty. Equally important, these cases force us to consider the continued vitality of the outrageous government conduct doctrine itself. The majority opinion decides all of these issues incorrectly. Further, despite its claims to the contrary, the majority's reasoning does virtually nothing to caution the government about overreaching. Instead, it sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable.

SeeUnited States v. Black et al.,Nos. 11-10036, 11-10037, 11-10039, 11-10077 (9th Cir. May 2, 2014).

Selected honors and awards[edit]

Publications[edit]

Noonan was a prolific and wide-ranging author. To quote one commentator:

[Noonan] has written a number of important studies about the interaction of Catholic moral doctrine and law, including comprehensive studies concerning contraception, marriage and divorce, and abortion.... He has written important studies of legal and judicial ethics, judicial and legal biography, the privilege against self-incrimination, American slave law, capital punishment, abortion, the legal and moral dimensions of physician-assisted suicide, the use of the constitutional convention as a means of amending the Constitution, marriage and family law, the emergence and development of an anti-bribery ethic, law reviews, legal philosophy, the Judiciary Act of 1789, and political affairs and theory.[39]

Noonan's major publications include:

  • The Scholastic Analysis of Usury(Harvard 1957) (ISBN0-674-79170-3)
  • Contraception: A History of Its Treatment by the Catholic Theologians and Canonists(Harvard 1968) (ISBN0-674-16853-4)
  • The Morality of Abortion: Legal and Historical Perspectives(Harvard 1970) (ISBN0-674-58725-1) (editor)
  • Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia(Harvard 1972) (ISBN0-674-69575-5)
  • Persons and Masks of the Law: Cardozo, Holmes, Jefferson and Wythe as Makers of the Masks(California 1975) (ISBN0-520-23523-1)
  • A Private Choice: Abortion in America in the Seventies(Free Press 1979) (ISBN0-02-923160-4)
  • Bribes: The Intellectual History of a Moral Idea(California 1984) (ISBN0-02-922880-8)
  • The Antelope: The Ordeal of the Recaptured Africans in the Administrations ofJohn Quincy Adams&James Monroe(California 1990) (ISBN0-520-03319-1)
  • Professional and Personal Responsibilities of the Lawyer(Foundation Press 1997) (ISBN1-56662-962-4) (casebookeditor, with Richard W. Painter)
  • The Lustre of Our Country: The American Experience of Religious Freedom(California 1998) (ISBN0-520-20997-4)[40]
  • Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government(Foundation Press 2001) (ISBN1-56662-962-4) (casebookeditor, with Edward McGlynn Gaffney)
  • Narrowing the Nation's Power: The Supreme Court Sides with the States(California 2002) (ISBN0-520-23574-6)
  • A Church That Can And Cannot Change: The Development of Catholic Moral Teaching(Notre Dame 2005) (ISBN0-268-03603-9)

References[edit]

  1. ^abNoonan, John Thomas Jr. (1998).The Lustre of Our Country: the American Experience of Religious Freedom.Berkeley, Calif.: University of California Press. pp.15,18, 23, 24, 25.ISBN0-520-20997-4.
  2. ^abcdefghiAlmanac of the Federal Judiciary.Aspen. 2011.ISBN9780735568891.RetrievedDecember 13,2012.
  3. ^abcStarr, Kevin (1994). "Judge John T. Noonan Jr.: A Brief Biography".Journal of Law and Religion.11(1): 151–176.doi:10.2307/1051628.JSTOR1051628.S2CID159824444.
  4. ^abcdefg"Noonan, John T., Jr. - Federal Judicial Center".
  5. ^ab"John T. Noonan Jr".The Notre Dame Center for Ethics & Culture.Archived fromthe originalon December 13, 2013.RetrievedDecember 13,2013.
  6. ^McGreevy, John T. (November 17, 2000)."A case of doctrinal development".Commonweal.Archived fromthe originalon March 25, 2013.RetrievedApril 26,2011.
  7. ^ab"Noonan, John T(homas) Jr. 1926–".Contemporary Authors.2005. Archived fromthe originalon November 5, 2012.RetrievedApril 26,2011.
  8. ^"Dixie Rodgers and John Noonan".The New York Times.October 2, 2005.RetrievedApril 26,2011.
  9. ^"Rebecca Noonan and Stuart Murray".The New York Times.May 8, 2005.RetrievedApril 26,2011.
  10. ^abcRoberts, Sam (23 April 2017)."John Noonan, Federal Judge Who Served for Three Decades, Dies at 90".The New York Times.p. A25.Retrieved24 April2017.
  11. ^"John T. Noonan".Institute for Advanced Catholic Studies at the University of Southern California.Archived fromthe originalon 13 December 2013.Retrieved13 December2013.
  12. ^Charles J. Reid, John T. Noonan, Jr., on the Catholic Conscience and War:Negre v. Larsen,76 Notre Dame L. Rev. 881 (2001).
  13. ^Negre v. Larsen,394U.S.968(1969)
  14. ^Gillette v. United States,401U.S.437(1971)
  15. ^"Former Laetare Medalist Judge John T. Noonan to deliver address at Notre Dame's Commencement".Notre Dame News.30 April 2009.Retrieved9 February2014.
  16. ^"U.S. District Judge Morris".U.S. Courts.Retrieved19 April2017.
  17. ^"Richard Painter".University of Minnesota School of Law.Retrieved19 April2017.
  18. ^"Vanderbilt Law School Faculty: Judge Allison M. Danner".Vanderbilt University Law School.Retrieved7 September2014.
  19. ^"Mary Fan".University of Washington School of Law.Retrieved19 April2017.
  20. ^"M. Cathleen Kaveny".University of Notre Dame Law School.Retrieved7 September2014.
  21. ^"Ailsa Chang".WNYC.Retrieved7 September2014.
  22. ^"Monica Youn".Brennan Center for Justice.RetrievedSeptember 8,2014.
  23. ^"Nancy Staudt".Washington University School of Law.Archived fromthe originalon July 29, 2016.RetrievedJune 26,2015.
  24. ^"Ninth Circuit judge recounts landmark case at HIRC 30th anniversary".July 22, 2014.RetrievedSeptember 8,2014.
  25. ^ab"High Court Backs Stay of Execution".The New York Times.April 30, 1990.RetrievedSeptember 7,2014.
  26. ^"The Case of Robert Alton Harris".The Los Angeles Times.March 31, 1990.Retrieved7 September2014.
  27. ^"Witness to the Execution: A Macabre, Surreal Event".The Los Angeles Times.April 22, 1992.Retrieved7 September2014.
  28. ^Compassion in Dying v. Washington,49 F.3d 586 (9th Cir. 1995).
  29. ^Compassion in Dying v. Washington,79 F.3d 790 (9th Cir. 1996).
  30. ^Washington v. Glucksberg,521U.S.702(1997).
  31. ^United States v. Kyllo,190 F.3d 1041 (9th Cir. 1999).
  32. ^Kyllo v. United States,533U.S.27(2001).
  33. ^United States v. Arizona,641 F.3d 339 (9th Cir. 2011).
  34. ^Markon, Jerry (April 11, 2011)."Court upholds block on parts of Arizona immigration law".The Washington Post.RetrievedApril 11,2011.
  35. ^"John T. Noonan".Library of Congress Bicentennial.Retrieved18 December2013.
  36. ^"Messenger Lectures".Cornell University.Archived fromthe originalon 19 December 2013.Retrieved18 December2013.
  37. ^"John Thomas Noonan Jr".Dominican School of Philosophy & Theology.Retrieved18 December2013.
  38. ^"Villanova Presents Judge John T. Noonan Jr. with Civitas Dei Medal".Retrieved13 December2013.
  39. ^Reid Jr., Charles."The Fundamental Freedom: Judge John T. Noonan Jr.'s Historiography of Religious Liberty".Marquette L. Rev.83(2): 367–433.Retrieved13 December2013.
  40. ^Fox, Richard Wightman (5 July 1998)."Blessings of Liberty: A study of how the Founding Fathers established the unique concept of freedom of religion".The New York Times Book Review.Retrieved24 April2017.

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Preceded by
Seat established by 98 Stat. 333
 Judge of theUnited States Court of Appeals for the Ninth Circuit
1985–1996 		Succeeded by
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