Former U.S. Court of Appeals for the Ninth Circuit Judge John Noonan Jr. (Stephanie Turner)
Longtime Ninth Circuit Judge John Noonan Jr., whose moral compass earned him admirers from the left and right of the bench—and the fear of attorneys guilty of ethical lapses—died Monday. He was 90.
Noonan was a scholar of law, theology and professional responsibility before being appointed to the bench by President Ronald Reagan in 1985. He was often a defender of religious values at the Ninth Circuit, whether resulting in conservative outcomes on issues such as assisted suicide or more liberal results for asylum-seeking immigrants or prisoners challenging the death penalty.
“To those of you who didn’t know him well, John Noonan was a wonderful man,” Judge Stephen Reinhardt said in a statement issued by the court. “He took his religion to heart and turned it to the pursuit of social justice. We were lucky to have had him with us.”
Noonan was “a Renaissance man who contributed to his country, his church, the legal academy and the rule of law,” Judge Diarmuid O’Scannlain said in the same statement. “He was a giant on this court and I shall miss him deeply.”
A Boston native, Noonan studied English literature at Cambridge and philosophy at Catholic University before earning his law degree from Harvard in 1954.
He had a brief fling with politics after practicing four years at a small Boston law firm, beating a young Michael Dukakis for a seat on the Brookline, Massachusetts, Redevelopment Authority.
Noonan then embarked on an academic career at the University of Notre Dame, where he published the 500-page treatise “Contraception: A History of Its Treatment by the Catholic Theologians and Canonists.” The work is said to have influenced Pope Paul VI to form a commission to study the issue, with Noonan advising the commission, according to the Ninth Circuit. Noonan also spent 20 years teaching professional responsibility at Berkeley Law before his judicial appointment.
Noonan’s moral sensibilities as a judge often colored the language of his opinions, if not the holdings. “There is a moral sense involved in judging and you can’t get away from it,” he said in a 1992 interview, while stressing that he nevertheless sought to follow the law where it took him.
Noonan authored the first federal appellate decision on physician-assisted suicide, holding that Washington state could prohibit the practice. A Ninth Circuit en banc panel led by Reinhardt later overruled the decision, but the Supreme Court took the case and sided with Noonan.
Noonan also dissented from a 2002 ruling that said San Francisco did not violate the Establishment Clause when it passed a resolution formally condemning a religious right advertising campaign. The city said the ads were likely to inspire anti-gay violence.
“Suppose a city council today, in the year 2002, adopted a resolution condemning Islam because its beliefs incorporated the concept of a holy war and so, the resolution said, were ‘directly correlated’ with the bombing of the World Trade Center,” Noonan wrote. “Would any reasonable, informed observer doubt that the primary effect of such an action by a city could be the expression of an official hostility to the religion practiced by a billion people?”
Noonan’s outlook also landed him frequently on the same side as immigrant rights advocates. A 1987 opinion of his blocked the deportation of a woman who had been raped and tortured by a Salvadoran army officer on the ground it amounted to political persecution.
“He worries about poor people,” Ninth Circuit Judge Harry Pregerson said in a 1992 interview. “He worries about the underprivileged. He worries about the immigrant. He worries about the dispossessed.”
Noonan also drew conservatives’ ire in the early 1990s when he repeatedly stayed California’s first execution in 25 years. The Supreme Court eventually cleared the way, after which Noonan wrote an op-ed for The New York Times criticizing the high court’s decision.
Some lawyers believed Noonan’s background teaching legal ethics made him tough on even minor transgressions. In a 1994 case where the court rebuked an attorney for using arbitration evidence that was outside the trial record, Noonan wrote separately to say he’d award sanctions. “The particular violation is one of first impression, but the rules are old and well-known and should be enforced,” he wrote.
Even Noonan’s clerks were sticklers for ethics. Richard Painter, who clerked for the judge in the 1980s, went on to serve as President George W. Bush’s chief ethics adviser as associate White House counsel.
Aside from court, Noonan served a six-year term on the Harvard University board of overseers and was on the governing board of the Graduate Theological Union at Berkeley and the University of San Francisco. In 1984 he received Notre Dame’s Laetare Medal, given annually to a Catholic “whose genius has ennobled the arts and sciences, illustrated the ideals of the church and enriched the heritage of humanity.”
Noonan is survived by his wife of 49 years, Mary Lee; their three children and seven grandchildren. A Mass of the Resurrection will be held at St. Albert’s Priory, Birch Court, in Oakland on Saturday, April 22 at 10 a.m.
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