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Published online by Cambridge University Press: 24 April 2015
As his classmate and friend since our first year in law school more than forty years ago, I have admired John Noonan for his gentle personality, his keen intellect, and his strength of character. He is an exemplar of ethical conduct, as a person and as a judge.
Judge Noonan presented a significant part of his philosophy of law, lawyers, and judges in his Holmes Lecture at Harvard Law School in 1972. The lecture was later published as a book, Persons and Masks of the Law, and it stands as one of the most significant essays that has been written about the legal profession.
In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to make a Golden Calf of abstract rules of law. He states, “Fascination with rules may mean obeisance to force or the delusion of having mastered force. It may also lead to a veritably religious veneration for the rules and their imagined author. The sovereign and his command may be deified.” When this scenario occurs, the rules become masks that disguise the humanity of those affected by the law. The effect of this occurrence is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons—conduct that they would otherwise recognize as evil.
1. Noonan, John T. Jr., Persons and Masks of the Law (Farrar, Straus, and Giroux, 1976)Google Scholar.
2. Id at 13.
3. Id at 19.
4. Id at 28.
5. Civil Rights Act, 42 USC § 1983 (1988).
6. Louisiana ex rel v Francis Resweber, 329 US 459 (1947). Also, recognizing that the best index of what constitutes cruel and unusual punishment is the practice enacted by state legislatures, Stanford v Kentucky 492 US 361, 370-371 (1989), the petitioners pointed out that only three states now authorize death only by means of lethal gas. One of these, Maryland, has not had an execution since 1961. Another, Arizona, had such an execution in April, 1992, and it was reported to the District Court that, in reaction to it, the legislature was taking steps to change the method of execution. The third state is California, whose statute was in question in the Harris case. See discussion in Fierro v Gomez, 790 F Supp 966, 971 (ND Cal 1992).
7. Fierro, 790 F Supp at 967.
8. These rules included the applicability of the doctrine of abstention under Younger v Harris, 401 US 37 (1971).
9. Gomez v United Sates Dist Court for Northern Dist Cal, 966 F2d 460, 461 (9th Cir 1992) (Noonan dissenting).
10. Id.
11. Id (citing Deakins v Monoghan, 484 US 193, 203 (1988)).
12. Id at 461-62 (citing Cohens v Virginia, 19 US (6 Wheat) 264, 404 (1821)).
13. Id at 462.
14. Id.
15. Id.
16. Gomez v United States District Court for Northern Dist Cal, 112 S Ct 1652, 1653 (1992).
17. Vasquez v Harris, 112 S Ct 1713 (1992). Justices Blackmun and Stevens dissented.
18. At that time, a refusal to answer on ground of the First Amendment alone would lead to a prosecution for contempt of Congress.
19. My recollection is that David Lubell's grades entitled him to a position on the Legal Aid Society, which was compelled to hold a similar meeting with a similar result. In a recent conversation, however, David's memory was unclear on that point.
20. Griswold, Erwin N., The Fifth Amendment Today (Harvard U Press, 1955)CrossRefGoogle Scholar.
21. Another illustration: Based upon a letter of recommendation from Professor Paul Freund to Philip Elman, a classmate of Judge Noonan was offered a position in the Justice Department. The offer was then revoked expressly because Professor Freund's former student had been a member of the National Lawyers Guild. (The NLG had been accused of being a “communist front,” but had never been put on the Attorney General's list of subversive organizations).
