Cardozo, Benjamin Nathan

Cardozo, Benjamin Nathan (b. New York City, 24 May 1870; d. Port Chester, N.Y., 9 July 1938; interred Cypress Hills Cemetery, Long Island, N.Y.), associate justice, 1932–1938. The son of Albert Cardozo and Rebecca Washington, Benjamin Cardozo was born into a community of persecuted Spanish and Portuguese Jews established in New Amsterdam in 1654. Governor Peter Stuyvesant attempted to expel them but was overruled by the Dutch West India Company. Cardozo's family produced distinguished patriots including Emma Lazarus, whose words once adorned the Statue of Liberty.

Cardozo was educated at Columbia College and Law School and practiced law in New York City. He was a member of the New York Court of Appeals from 1914 and chief judge from 1926 until his appointment to the United States Supreme Court in 1932.

While on the New York Court of Appeals, Cardozo became America's most celebrated state common law judge. In tort law he is most renowned for expanding the class of persons to whom a legal duty is owed. MacPherson v. Buick (1916) has become the fountain of products liability and Ultramares Corporation v. Touche (1931) similarly expanded the law of fraud to protect third parties. In contract law Cardozo was most closely associated with efforts to instill fairness into ambiguous contracts rather than permitting contracts to fail and entrap one of the parties. Cardozo understood that intentions are often unexpressed, indeed unformed, and must often be presumed. He substituted a presumption of mutually cooperative behavior for a presumption of purely competitive behavior (Jacob and Youngs v. Kent, 1921).

His method of reaching these decisions made Cardozo the standard‐bearer for a movement that came to dominate American legal thought. While serving on the Court of Appeals he was invited to deliver the Storrs Lectures at Yale, The Nature of the Judicial Process (1921), which became his classic statement of the proper judicial decision‐making process. Cardozo argued for what he described as sociological jurisprudence, rooted in a sophisticated understanding of positivist jurisprudence and expressed with elegance and clarity. He led both bench and bar to interpret law guided by its purpose and function rather than as purely conceptual or “formal.” As he wrote later in Carter v. Carter Coal Co. (1936), “a great principle of constitutional law is not susceptible of comprehensive statement in an adjective” (p. 327).

Cardozo's appointment to the Supreme Court was urged with unique unanimity on President Herbert Hoover. Cardozo, however, moved from a leader on the New York court to a dissenter for most of his career in Washington. Like Oliver Wendell Holmes, whom he succeeded, he joined Justices Louis D. Brandeis and Harlan Fiske Stone insisting on deference to Congress and the states. They succeeded in redefining constitutional law in a series of cases beginning in 1937 just before Cardozo's death. He delivered the opinions in Steward Machine Co. v. Davis (1937) and Helvering v. Davis (1937) in which the Court, reversing itself on the nature of federalism, upheld the power of Congress under the taxing and spending clauses to enact provisions of the Social Security Act.

Prior law had been based on a set of judicially defined mutually exclusive rights and powers (see Separation of Powers). Deference to other branches of government required rethinking every aspect of constitutional law. After 1937 both rights and powers would be understood as concurrent and overlapping. Concurrent and overlapping rights and powers leave boundaries undefined. Cardozo led the way in substituting a new constitutional rationale for the now absent boundaries. He contributed to that redefinition most memorably in Palko v. Connecticut (1937), in which Cardozo's formula, “the essence of a scheme of ordered liberty” (p. 325), became the basis for the incorporation of most of the Bill of Rights into the Fourteenth Amendment and eventuated in making those provisions applicable to the states. In a related area, Cardozo wrote for a deeply divided Court in Nixon v. Condon (1932), one of the early white primary cases, that a state may not authorize a committee of a political party to exclude members of a racial minority from a party primary.

Cardozo's opinions, like those of Holmes and Brandeis, are cited for the authority of the author and the clarity of his pen. He is remembered in innumerable current opinions of members of the Supreme Court for his attention to justice, his emphasis on the purpose of law, and for his majestic description of the relationship between policy and precedent in his books and opinions.

Bibliography

Felix Frankfurter , Mr. Justice Cardozo and Public Law, Columbia Law Review 39 (1939): 88–118, Harvard Law Review 52 (1939): 440–470, Yale Law Journal 48 (1939): 458–488.
Warren A. Seavey , Mr. Justice Cardozo and the Law of Torts, Columbia Law Review 39 (1939): 20–55, Harvard Law Review 52 (1939): 372–407, Yale Law Journal 48 (1939): 390–425.

Stephen E. Gottlieb