John T. Noonan Jr., a federal judge and polymath who defied ideological pigeonholing on profound issues like assisted suicide, the death penalty, civil liberties and illegal immigration, died Monday in Berkeley, Calif. He was 90.
The cause was heart failure, his daughter Susanna Howard said.
During three decades on the federal bench, through December 2016, Judge Noonan heard oral arguments in 3,459 cases and wrote 1,080 opinions, dissents and other decisions in longhand on yellow legal pads — most notably a 1995 ruling upholding a Washington State law banning physician-assisted suicide.
That opinion stemmed from the first federal litigation involving the volatile issue, which gained prominence with Michigan’s prosecution of Dr. Jack Kevorkian, who helped more than 100 patients end their lives, and the approval by Oregon voters of a right-to-die law.
Judge Noonan wrote the 2-to-1 ruling overturning a lower-court decision that the state law was unconstitutional. A majority of his colleagues on the full Court of Appeals for the Ninth Circuit later sided with the lower court, but the United States Supreme Court eventually agreed with Judge Noonan that the state could prohibit doctors from participating in euthanasia.
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Appointed to the appeals court in San Francisco in 1985 by President Ronald Reagan, Judge Noonan delighted conservatives and fellow Roman Catholics with his staunch opposition to legalized abortion.
But he also pilloried the Supreme Court for carving out so-called sovereign immunity — a right-wing shibboleth — which empowered states to discriminate, pollute or otherwise conflict with congressional mandates.
In 1990, Judge Noonan stayed the execution of a convicted murderer in California, Robert Alton Harris, to determine whether his constitutional rights had been violated when he was denied the benefit of his own competent psychiatric expert during the sentencing phase of his trial.
Mr. Harris died in a gas chamber in 1992 after the Supreme Court refused to grant another stay. It was the first application of the death penalty in the state in 25 years.
Steeped in Catholic theology, Judge Noonan became an expert on the roots and context of morality.
The historian Kevin Starr wrote in the Journal of Law and Religion in 1995, “A science, however inexact, the law is a humanistic pursuit as well, and no one in the past four decades has pursued the law with such humanistic fervor — a humanism enlivened by religion — as John Noonan.”
Judge Noonan’s book “Contraception: A History of Its Treatment by the Catholic Theologians and Canonists” (1965) was credited with influencing the commission appointed by Pope Paul VI to study birth control, which hired him as a historical consultant and recommended relaxing the church’s flat ban on birth control. The recommendation was overruled.
Among his 12 other books were his classic “Persons and Masks of the Law” (1975), which infused legal jargon with soulfulness, and other magisterial studies, including “Bribes” (1984), “The Responsible Judge: Readings in Judicial Ethics” (1993), “The Lustre of Our Country: The American Experience of Religious Freedom” (1998) and “Narrowing the Nation’s Power: The Supreme Court Sides With the States” (2002).
“‘The Lustre of Our Country,’” Professor Richard Wightman Fox of Boston University wrote in The New York Times Book Review, “is a Catholic’s paean to the greatness of a liberal American tradition, but more important, it is a judge’s and scholar’s very enlightening tour through a complex legal and religious history.”
Judge Noonan, he added, “has the mix of intellectual chutzpah and humility to make it a tour de force.”
John Thomas Noonan Jr. was born Oct. 24, 1926, in Boston. His father was a lawyer. His mother was the former Marie Frances Shea.
A precocious student, he entered Harvard during his senior year in high school and graduated when he was 19 with a degree in English. He studied at St. John’s College at the University of Cambridge, and earned a master’s and a doctorate in philosophy from the Catholic University of America in Washington and a degree from Harvard Law School.
In addition to his daughter Susanna, he is survived by his wife, the former Mary Lee Bennett; two other children, John K. Noonan and Rebecca Murray; and seven grandchildren.
After law school, he worked for President Dwight D. Eisenhower’s national security adviser, Robert Cutler; defeated a fledgling politician named Michael S. Dukakis for a seat on the Brookline, Mass., Redevelopment Authority; and joined his father’s Boston law firm.
In 1961, he was recruited to teach law at the University of Notre Dame by its president, the Rev. Theodore M. Hesburgh. In 1966, he joined the faculty of the University of California, Berkeley, Boalt Hall School of Law, where he taught until he was appointed a judge.
While at Berkeley, he argued unsuccessfully on behalf of a California soldier whose constitutional rights to freedom of religion, he said, were being abridged. The soldier was denied conscientious objector status because, as a Catholic, his opposition to the Vietnam War was specific to that conflict, as an unjust war; soldiers belonging to other religions that preached complete pacifism had been excused from military service.
Other rulings by Judge Noonan suggested that he was particularly sympathetic to the plight of immigrants.
In 2011, he issued a concurring opinion that upheld a trial judge’s decision to overturn sections of Arizona’s draconian immigration law, including a provision empowering the police to question people whom they had a reasonable suspicion were illegal immigrants. “That 50 individual states or one individual state should have a foreign policy is absurdity too gross to be entertained,” he wrote.
In a Fourth Amendment case, Judge Noonan dissented from the majority’s opinion that use of a thermal imaging device to monitor a defendant’s home did not constitute an illegal search. The Supreme Court decided that Judge Noonan was right.
What makes a judgment right? Judge Noonan defined it this way: “Rightness in the end is the fit of the result to the facts, compiled with the possibility of generalizing the result.”
He wrote: “Sharing with the English the common law tradition of judge-made law, Americans are blessed with a much fuller literature on their judges’ lives, reflecting, I believe, an American appreciation of the truth that the law a judge makes is a projection of values that are inescapably personal — even while the judge labors to be impartial between the litigants and objective in his framing of the dispositive legal rule.”
While all those variables go into a decision, he said, he never arrogated to himself any prerogative to evaluate individuals.
“As prosecutors, judges and historians we must sometimes evaluate actions,” Judge Noonan said. “We cannot judge persons.”
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