Benjamin N. Cardozo

Associate justice of the United States (1932-1938)

• Born: May 24, 1870
• Birthplace: New York, New York
• Died: July 9, 1938
• Place of death: Port Chester, New York

Cardozo’s twenty-five-year career on the New York Court of Appeals and the U.S. Supreme Court made him one of the most admired and respected judges in American history. As a scholar, he illuminated the nature of the judicial process; as a judge, he helped transform American law to meet the needs of a changing, modern society.

Early Life

Benjamin N. Cardozo (kahr-DOH-zoh) was born in were chosen to one of the most prominent Sephardic Jewish families in the United States. Ancestors on both sides could be traced back to the seventeenth century and included distinguished rabbis, educators, businessmen, lawyers, and writers, including the poet Emily Lazarus, whose words grace the Statue of Liberty. His mother, Rebecca Nathan Cardozo, was noted for her beauty and culture. She was descended from a family that had made important contributions to the American Revolutionary cause in the eighteenth century. His father, Albert, was one of the most brilliant judges on the New York State Supreme Court.

Yet Benjamin’s youth was marked by a number of tragedies that profoundly influenced the course of his life. Shortly after his birth, an uncle for whom he had been named, Benjamin Nathan, was murdered in his New York City town house under mysterious circumstances. When he was three years old, his father was forced to resign from the court amid charges of corrupt involvement with the infamous Boss Tweed and the notorious financier Jay Gould. Six years later, Cardozo’s beloved mother died, leaving the eldest daughter, Ellen, to care for Benjamin; his twin sister, Emily; an older brother, Albert; and two other daughters.

The resulting publicity left an already private family more determined to isolate itself from the outside world. Thus, Benjamin received his early education through private tutors at home. One of these was the famous writer Horatio Alger. He easily passed the entrance exams for Columbia University, graduating in 1889, at the top of his class. He then entered Columbia Law School but left after two years to begin legal practice (at that time a law school degree was not a universal requirement for admission to the bar).

Cardozo’s father died in 1885. Benjamin never married and continued to live with his older sister, Ellen, until her death in 1929. Sheltered and in frail health as a child, he grew to be reserved and almost painfully shy as an adult. At the same time, his charm, humility, and gentleness were almost legendary. He was of medium stature, his face characterized by an almost feminine softness, with pale blue eyes beneath bushy eyebrows and a shock of pale, fine hair.

Life’s Work

Cardozo began his career in law working in his brother Albert’s New York City law firm. His deceptively gentle personality hid an advocate of remarkable persuasiveness, and he soon established a reputation as an outstanding corporate and commercial attorney. Although he stayed out of politics and bar activities, his name was put forth as a judicial candidate in 1913 by reformers anxious to wrest control of New York government from the Tammany Hall political machine. Cardozo narrowly won election to the state supreme court (the intermediate appellate court in New York). Shortly after he assumed his position on this court, the governor appointed him to a temporary vacancy on the state’s highest court, the court of appeals. In 1917, he was made a regular member of that tribunal and was elected with bipartisan support to a fourteen-year term.

Within a few years, Cardozo became the dominant intellectual force on the court of appeals, and in 1926 became its chief judge as well. He also helped solidify that court’s reputation as one of the preeminent state high courts in the nation. The primary work of such courts involved issues of private law, such as contract liability, commercial relations, wills and estates, property, and torts (private wrongs). It was in these areas that Cardozo made many of his most important contributions, primarily by reformulating many of the formal doctrines and precedents of the nineteenth century common law to fit the changing realities of an urban, industrial, and increasingly complex society.

Several examples from among Cardozo’s many opinions illustrate this process. Perhaps the classic example of Cardozo jurisprudence was his 1916 opinion in the case MacPherson v. Buick Motor Company . MacPherson was driving his motor car when one of the wheels, later proved to be made of defective wood, crumbled, causing MacPherson to be thrown from the car and injured. Under traditional legal doctrine, MacPherson should have sued the dealer who had sold him the defective car, not the manufacturer, with whom he had had no dealings. Through clever reasoning and eloquent language, however, Cardozo gave the plaintiff a cause of action against the third-party manufacturer. This decision marked a whole new direction in product liability law: Manufacturers of products, increasingly important in a society that was rapidly becoming consumer oriented, were now on notice that they must exercise care in the production of their goods or suffer the consequences.

Another of Cardozo’s famous court of appeals decisions involved a rather remarkable set of factual circumstances. A railroad conductor on a commuter train inadvertently jostled a passenger who was attempting to board the train at the last moment. The passenger dropped a package that happened to contain fireworks. The resulting explosion caused a set of scales at the other end of the station platform to fall, injuring a nearby passenger and her child, who were waiting for another train. In Palsgraf v. Long Island R.R. (1928), Cardozo ruled that the railroad company was not liable for the harm done to Palsgraf and her baby, thereby setting off in new directions previously accepted nineteenth century doctrines of strict liability and causation of wrongful acts.

Cardozo’s intellect and style reached a wider audience in 1921, with the publication of a series of lectures he delivered at Yale University entitled The Nature of the Judicial Process . This and subsequent short works, The Growth of the Law (1924) and The Paradoxes of Legal Science (1928), firmly established him as one of the finest legal minds in the country. As the titles suggest, Cardozo was less interested in what the law should be than in how judges go about deciding what the law is. While recognizing traditional reliance on formal logic and past decisions on the judicial process, he argued that other factors were and should be taken into account by judges in reaching their decisions. Larger economic and social ends are and should be part of judicial decision making, enabling judges, if necessary, to “bend symmetry, ignore history, and sacrifice custom” in pursuit of these larger ends.

By 1930, Cardozo had become one of the most celebrated jurists in the country. When, in 1932, Justice Oliver Wendell Holmes, Jr., resigned from the U.S. Supreme Court, there was near-unanimous approval when President Herbert Hoover appointed Cardozo to the seat left vacant by the man Cardozo himself always referred to as “the Master.” Although he made much of his unworthiness to replace his friend and mentor and complained about having to leave the congenial atmosphere of the court of appeals in Albany for the uncertainties of the more public and demanding life in Washington, Cardozo readily accepted his nomination (it has been suggested that Cardozo’s famed humility and reserve masked a compelling ambition to eradicate the stain on the family name resulting from his father’s disgrace).

At the time Cardozo took his seat on the Supreme Court, the United States was in the middle of confronting the Great Depression. Worsening economic conditions helped produce the landslide victory of Franklin D. Roosevelt in 1932 and the subsequent passage of a barrage of New Deal federal economic reforms and regulations. The great uncertainty was how the Supreme Court would view the constitutionality of these programs. Throughout the 1920’s, the Court had consistently struck down federal and state economic and social legislation. This practice was generally followed despite the dissents of the three liberals on the Court, Oliver Wendell Holmes, Louis D. Brandeis, and Harlan Fiske Stone.

During the first years of the New Deal, the Court continued this trend, striking down many of the most important attempts to deal with the plight of American workers and farmers. In most of these cases, Cardozo found himself in the minority, dissenting along with Brandeis and Stone. Then, in 1937, Roosevelt unveiled his plan to pack the Court with new appointees. The Supreme Court in turn made what was called “the switch in time that saved nine” (whether there was a direct cause-and-effect relationship between the plan and the switch is a matter of debate). The Court began upholding New Deal legislation: Cardozo, for example, authored the Court’s decision in Helvering v. Davis (1937), which upheld the constitutionality of the Social Security Act.

During these years, the Court had also begun slowly to deal with more cases and issues involving civil liberties and the Bill of Rights. In the 1920’s, the Court had extended for the first time the protections of the First Amendment to the states, using as its justification the “due process” clause of the Fourteenth Amendment. In Palko v. Connecticut (1937), Cardozo, speaking for the majority, greatly expanded this doctrine. He held that while the entire Bill of Rights was not applicable, or incorporated, to the states, those provisions that partook “of the very essence of a scheme of ordered liberty” were. This doctrine became the guiding force in the Court’s expansion of civil liberties protections involving state action over the next quarter century.

During the latter months of 1937, Cardozo experienced a series of heart problems, and on January 8, 1938, he suffered a stroke that left him partially paralyzed. Although he refused to resign from the Court, his continuing poor health forced him to move to the home of his longtime friend, Judge Irving Lehman, in Port Chester, New York. There he died on July 9, 1938.

Significance

Although he served for only a brief time on the Supreme Court, Cardozo is generally conceded to be among the great chief justices, in part because he came to the Court already a legend. His work on the court of appeals alone had an enormous impact on the development of American law in the twentieth century, and his opinions in private and commercial law cases became required study for law students everywhere not only for the legal principles involved but also as models of legal reasoning and linguistic elegance.

Moreover, Cardozo does not easily fit into the simple categories of “liberal” or “conservative” often used to characterize Supreme Court justices. In his belief in the evolutionary and progressive nature of the law and his willingness to use the law for economic and social reform, he reflected the basic tenets of American liberal thought in the twentieth century. Similarly, his tolerance and commitment to human rights and his extension of Bill of Rights protections would place him in the liberal camp. Yet his consistent warnings and urgings to judges to exercise restraint, to defer to the wishes of the people as expressed in their legislative bodies, were reflective of conservative doctrine in the United States, especially after the 1950’s.

Bibliography

Abraham, Henry J. Justices and Presidents. New York: Oxford University Press, 1974. A fascinating and highly readable history of Supreme Court appointments, including a small section on Cardozo’s nomination by Hoover. Also includes the 1970 survey in which law professors and historians ranked Cardozo among the twelve great Supreme Court justices.

Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press, 1921. Cardozo’s best-known work, a short book, but one filled with insights on the role and function of judges and the impact of history, tradition, and sociology on the judicial process.

‗‗‗‗‗‗‗. Selected Writings of Benjamin Nathan Cardozo. Edited by Margaret E. Hall. New York: Fallon, 1947. A collection of Cardozo’s writings and speeches outside the courtroom. They display the broad range of his intellect and his interests.

Harvard Law Review 52 (1939). The entire issue is dedicated to memorial tributes to and essays on Cardozo’s contributions to public law, the law of contracts, and the law of torts. It was published simultaneously with the Columbia Law Review (39, 1939) and the Yale Law Journal (volume 48, 1939).

Hellman, George S. Benjamin N. Cardozo: American Judge. New York: McGraw-Hill, 1940. Written by a family friend, this is a very detailed account of Cardozo’s personal life. Good on his family and friendships, but almost worshipful.

Kaufman, Andrew L. Cardozo. Cambridge, Mass.: Harvard University Press, 1998. Comprehensive biography, combining details about Cardozo’s life with legal analysis of his judicial opinions.

Levy, Beryl H. Cardozo and the Frontiers of Legal Thinking. New York: Oxford University Press, 1938. A selection of some of Cardozo’s opinions. With the exception of his decision in Helvering v. Davis, all are from his years on the New York Court of Appeals. There is also a readable introductory essay by Levy with a biographical sketch and an outline of Cardozo’s thought.

Polenberg, Richard. The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge, Mass.: Harvard University Press, 1997. Examines how Cardozo arrived at his decisions during his tenure as a New York state judge and Supreme Court justice.

White, G. Edward. “Cardozo, Learned Hand, and Frank: The Dialectic of Freedom and Constraint.” In The American Judicial Tradition. New York: Oxford University Press, 1976. In this perceptive analysis of important American judges, White places Cardozo in the context of American legal development. Cardozo, Learned Hand, and Jerome Frank were not only friends and colleagues but also shared the philosophy of “judicial restraint.”