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Benjamin Nathan Cardozo

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Cardozo, Benjamin Nathan


Benjamin Nathan Cardozo was a New York state court judge, an associate justice on the U.S. Supreme Court, and an influential legal scholar.

Cardozo was born May 24, 1870, in New York City, the youngest son in a family of six children. His parents were descendants of Portuguese and Spanish Jews who had settled in New York before the Revolutionary War. His father, albert cardozo, was a trial court judge who was forced to resign his seat because of allegations, which were never proved, of improper conduct involving the then corrupt New York City government. Cardozo was tutored during his early life by well known clergyman and teacher Horatio Alger and entered Columbia College at the age of fifteen. He earned a bachelor's degree in 1889 and a master's degree in 1890, then enrolled at Columbia Law School. He was granted admission to the New York state bar in 1891 without having received his law degree.

After completing his legal training and passing the bar examination, Cardozo began practicing appellate law with his brother. He soon became a prominent practitioner in his own right in the fields of corporate and commercial law. He often acted as consultant to other law firms, writing appeal briefs for other lawyers and appearing frequently before the New York Court of Appeals, the state's highest court. His extensive appellate experience led him to write his first book, Jurisdiction of the Court of Appeals of the State of New York, published in 1903. In addition, judges often appointed him to act as referee in complicated matters of commercial law, one of his areas of specialty.

In 1913, after twenty-three years in private practice, Cardozo was nominated and elected as a judge on the New York Supreme Court, the state's trial-level bench. Only six weeks later, he was designated to serve temporarily as an associate judge on the Court of Appeals. He remained a temporary judge of the Court of Appeals until 1917, when he was appointed to fill a vacant and permanent seat, and in 1926 he was elected chief judge.

"The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by."
—Benjamin Cardozo

During his tenure on the Court of Appeals, Cardozo made his mark as an influential and celebrated jurist and moved the New York court to the forefront of the nation's state courts. With respect to tort law, the court under Cardozo greatly expanded the protection offered to individuals injured by the negligence of others. In macpherson v. buick motor co., 217 N.Y. 382, 111 N.E. 1050 (1916), perhaps Cardozo's most influential tort opinion, the court held Buick liable for the negligent construction of a defective wheel that injured a purchaser who had bought the car not from Buick but from an automobile dealer. Cardozo's decision to look beyond the contractual relationship between the buyer and seller to the manufacturer for redress helped lay the groundwork for the development of product liability, now a common feature of the law, which allows for recovery for injuries even if the consumer had no contractual relationship with the manufacturer. But Cardozo was also willing to impose some commonsense limits on tort liability. In the classic decision palsgraf v. long island railroad, 248 N.Y. 339, 162 N.E. 99 (1928), he authored the majority opinion establishing that a person can be held negligent only for a harm or injury that is foreseeable and not for every injury that follows from the negligence. As Cardozo put it, "[T]he orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of duty."

Cardozo's influence was also strongly felt in the law of contracts. He wrote the majority opinion in Wood v. Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), perhaps his best known and most widely quoted decision concerning the implied elements of a contract. In Wood and his other contract law decisions, Cardozo made clear his views that, whenever possible, courts should attempt to instill fairness in an ambiguous contract by analyzing and interpreting its implicit terms to cover situations that the parties may not have provided for explicitly.

In 1932, when ninety-year-old oliver wendell holmes jr., announced his retirement from the U.S. Supreme Court, politicians, lawyers, and legal scholars publicly campaigned for Cardozo to succeed him. President herbert hoover, though impressed with Cardozo's credentials and intellect, was initially lukewarm about nominating him to the Court. Two other New Yorkers, Chief Justice charles e. hughes and Justice harlan f. stone, were already on the Court and others in Hoover's administration were concerned about appointing a second Jewish

justice to serve in addition to Justice louis d. brandeis. After Stone offered his resignation (which was not accepted) to make room for Cardozo, Hoover was eventually persuaded to ignore the politics of geography and anti-Semitism and named Cardozo to the Court. On February 24, 1932, Cardozo was confirmed unanimously by a voice vote of the Senate, though he was said to be reluctant to leave his family and friends in New York and move to Washington, D.C., to accept the seat.

Though he served on the Court for only six years, Cardozo authored a number of significant decisions. He authored the majority opinion in the civil rights case Nixon v. Condon, 286 U.S. 73, 52 S. Ct. 484, 76 L. Ed. 984 (1932). Condon held that a resolution by a state party executive committee, under purported authority of a Texas statute (Vernon's Ann. Civ. St. Tex. art.

3107), which excluded blacks from primary elections, violated the equal protection clause of the fourteenth amendment. Cardozo, for the most part, supported President franklin d. roosevelt's new deal legislation, writing the majority opinions in Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904, 81 L. Ed. 307 (1937), and Steward Machine Co. v. Davis, 301 U.S. 548, 57 S. Ct. 883, 81 L. Ed. 1279 (1937), which upheld the constitutionality of the unemployment compensation (Social Security Act § 901–910, 42 U.S.C.A. § 1101–1110) and oldage benefits programs (Social Security Act § 201 et seq., 42 U.S.C.A. § 401 et seq.) of the social security act of 1935. Cardozo also authored a number of significant criminal law decisions while on the Court, including Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937). In Palko, the Court held that the due process clause of the Fourteenth Amendment of the Constitution did not require that the double jeopardy Clause contained in the fifth amendment be applied to the states. Cardozo favored a "selective incorporation" approach to the Fourteenth Amendment, writing that only select protections of the first eight amendments that "represented the very essence of a scheme of ordered liberty, … principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental," should be imposed upon the states. Palko represented the beginning of the Supreme Court's long struggle to formulate a test for applying the Due Process Clause of the Fourteenth Amendment as a limit on states' powers.

Cardozo, though remembered for his majority opinions, was not afraid to disagree with the majority and wrote some equally significant and stirring dissents while on the Court. In Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct. 855, 80 L. Ed. 1160 (1936), one of many cases arising out of constitutional challenges to Roosevelt's New Deal legislation, the Court in a 6–3 vote struck down the 1935 Bituminous Coal Conservation Act (15 U.S.C.A. §§ 801–827), which authorized fixed prices to help stabilize the coal industry. Cardozo maintained that the law was constitutional and necessary to combat the economic problems created by the Great Depression. He wrote that "[a]fter making every allowance for differen[ces] of opinion as to the most efficient cure, the student of the subject is confronted with the indisputable truth that there are ills to be corrected, and ills that had a direct relation to the maintenance of commerce among the states.… An evil existing, and also the power to correct it, the lawmakers were at liberty to use their own discretion in the selection of the means."

Cardozo's body of legal scholarship is not limited to the many important judicial opinions he authored as a state court judge and U.S. Supreme Court justice. He also wrote a number of books which have become classics of legal thought and judicial philosophy. His lectures on the decision-making process that he delivered at Yale Law School and Columbia University early in his career were published in 1921 as a group of essays in The Nature of the Judicial Process, which is still widely used as a textbook for first-year law students. He also wrote The Growth of the Law (1924), The Paradox of Legal Science (1928), and Law and Literature (1931). In all his books, Cardozo sought to define the difficult issues faced by a judge in deciding cases, as well as his beliefs about how the entire legal system could function most effectively.

Cardozo, who never married and remained close to his family throughout his life, was a shy and reclusive man described in one book about the history of the Court as "the hermit philosopher." He remained on the Supreme Court until 1938 when he died of heart trouble at the age of sixty-eight. He is buried in the Cardozo family plot in the cemetery of Shearith Israel congregation at Cypress Hills, Long Island.

further readings

Congressional Quarterly. 1989. Guide to the U.S. Supreme Court. 2d ed. Washington, D.C.: Congressional Quarterly.

Elliott, Stephen P., ed. 1986. A Reference Guide to the United States Supreme Court. New York: Facts on File.

Kaye, Judith S. 1999 "Poetic Justice: He Was a Great Common Law Judge, Responsive To his Times; As Business Relationships Became More Complex and Attenuated, Benjamin Nathan Cardozo Created New—and Lasting—Standards." American Lawyer 21 (December).

Levy, Beryl H. 1938. Cardozo and Frontiers of Legal Thinking. Port Washington, N.Y.: Kennikat Press.

Pollard, Joseph P. 1970. Mr. Justice Cardozo: A Liberal Mind in Action. Westport, Conn.: Greenwood Press.

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Benjamin Nathan Cardozo

Benjamin Nathan Cardozo

Benjamin Nathan Cardozo (1870-1938) was one of the greatest legal philosophers to serve on the Supreme Court of the United States.

Born in New York City on May 24, 1870, Benjamin Cardozo was of Jewish parentage. His ancestors had come to America in colonial times. On the maternal side, his great-great-uncle Rabbi Gershom Mendes Seixas was present at George Washington's presidential inauguration, and on the paternal side, his great-great-grandfather Aaron Nunez Cardozo emigrated from London in the 18th century.

Cardozo attended the public schools of New York City. At the age of 15 he entered Columbia College, where in 1889 he received his bachelor of arts degree. He delivered the commencement oration of The Altruist in Politics. Just 20 years old when he received his master of arts in political science, he went on to study at Columbia School of Law and graduated in 2 years with a bachelor of laws degree. Admitted to practice in 1892, he became an expert in the highly technical field of commercial law.

For 20 years Cardozo had a successful private practice, specializing in appellate law. He was constantly consulted by lawyers on intricate legal questions and was known as a "lawyer's lawyer," arguing complex points before the appellate courts.

Appellate Bench

Though not a politician in any way, Cardozo wanted to become a judge. In 1913, running as an independent Democrat, he was elected to a 14-year term on the New York Supreme Court. However, he was on the court for only a month when he was appointed to serve temporarily as associate judge of the highest court of the state, the Court of Appeals. His appointment came at the request of the court, which had been asked to nominate a candidate. The esteem in which he was held by his judicial colleagues is evident in this most extraordinary move. On Jan. 15, 1917, New York's governor named him a regular member of the Court of Appeals. In November 1917 Cardozo was elected to a full term on the court, subsequently becoming chief judge. The New York Court of Appeals reached the height of its reputation during this period.

U.S. Supreme Court

In 1932 Associate Justice Oliver Wendell Holmes, Jr., retired from the U.S. Supreme Court. President Herbert Hoover invited Cardozo to serve because "the whole country demands the one man who could best carry on the great Holmes tradition of philosophic approval to modern American jurisprudence." The U.S. Senate confirmed the appointment unanimously. This was the same Senate that had rejected two previous Hoover nominees. Cardozo took his seat on Mar. 14, 1932.

A man with a mind as active as Cardozo's was bound to find an outlet in writing. In 1921 he published his first work, The Nature of the Judicial Process, and 3 years later The Growth of the Law appeared. The Paradoxes of Legal Science was published in 1928. Shortly after he moved to the U.S. Supreme Court his last work, Law and Literature and Other Essays, was published.

Cardozo's Opinions

Many of Cardozo's extraordinary qualities as a judge are revealed by his Supreme Court opinions. For example, his majority opinion in Steward Machine Co. v. Davis (1931) clearly indicated his belief that the Constitution must serve the changing needs of the people. In United States v. Butler (1936) Cardozo dissented, along with justices Louis Brandeis and Harlan Stone, declaring that the Agricultural Adjustment Act of 1933 was unconstitutional.

Justice Cardozo wrote for the majority in the 8-to-1 decision on the case Palko v. Connecticut (1937). Palko had been indicted and tried for murder in the first degree, but a jury found him guilty of second-degree murder, and he was given a life sentence. However, a Connecticut statute permitted the state to appeal rulings and decisions "upon all questions of law arising on the trial of criminal cases." The state appealed, and a new trial was ordered. Palko was again tried, found guilty, and sentenced to death and this second conviction was affirmed by the highest state court. Palko then brought the case to the Supreme Court on appeal, contending that he was being placed in double jeopardy in violation of the 5th Amendment.

The importance of this opinion was not in the fact that the Supreme Court found that Palko had suffered no loss of his rights under the Constitution, but in what Cardozo said about the 5th Amendment's self-incriminating clause. He wrote: "This (privilege against self-incrimination) too might be lost and justice still be done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. Justice, however, would not perish if the accused were subject to a duty to respond to ordinary inquiry."

Writing the majority decision in Helvering v. Davis (1937), Cardozo moved into the area of constitutional law. This case decided that the old-age pension phase of the social security program was constitutional. Cardozo made the issue clear when he declared, "Congress may spend money in aid of the 'general welfare."'

Cardozo voted with the majority in a number of cases that set legal precedents. In Nebbia v. New York (1934) he agreed that a New York law establishing the price of milk was constitutional because: "Price control, like any form of regulation is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislation is free to adopt…. " In West Coast Hotel Co. v. Parrish (1937) the Court determined that a minimum-wage law enacted in the state of Washington was constitutional, overruling an earlier Supreme Court opinion. In finding for the plaintiff the Court opened the gates to social legislation passed by state legislatures.

Late in 1937 Justice Cardozo began to feel the pressures of his judicial responsibilities. He was tired. He had never married, and most of his family was dead. Judge Irving Lehman, who had been on the New York Court of Appeals with Cardozo, invited him to stay at his home. As the months wore on, Cardozo's health continued to fail, and early in 1938 he died.

An Evaluation

Cardozo's judicial career was one of the most illustrious in the annals of American law. Justice Felix Frankfurter, in his book Of Law and Men, stated, "Barring only Mr. Justice Holmes, who was a seminal thinker in the law as well as vastly learned, no judge in his time was more deeply versed in the history of the common law or more resourceful in applying the living principles by which it has unfolded than Mr. Justice Cardozo."

U.S. Attorney General Homer Cummings stated upon Cardozo's death: "His opinions spoke in tones of rare beauty. They might deal with things prosaic, but the language was that of a poet." Judge Learned Hand saw Cardozo as "a shy and sensitive man of great humility and compassion. It was a rare good fortune that brought to such eminence a man so reserved, so unassuming, so retiring, so gracious to high and low, and so serene."

Further Reading

Two works dealing directly with Cardozo and the law are Beryl H. Levy, Cardozo and Frontiers of Legal Thinking (1938; rev. ed. 1969), and George S. Hellman, Benjamin N. Cardozo: American Judge (1940). A well-documented work that praises Cardozo's decisions supporting Congress is Walter F. Murphy, Congress and the Court: A Case Study in the American Political System (1962). There is a chapter on Cardozo by A. L. Kaufman in Allison Dunham and Philip B. Kurland, eds., Mr. Justice (rev. ed. 1964). See also Joseph P. Pollard, Mr. Justice Cardozo: A Liberal Mind in Action (1935).

Additional Sources

Pollard, Joseph P. (Joseph Percival), Mr. Justice Cardozo: a liberal mind in action, Buffalo, N.Y.: W.S. Hein, 1995.

Posner, Richard A., Cardozo: a study in reputation, Chicago: University of Chicago Press, 1990. □

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Cardozo, Benjamin Nathan

Benjamin Nathan Cardozo (kärdō´zō), 1870–1938, American jurist, associate justice of the U.S. Supreme Court (1932–38), b. New York City. Educated at Columbia Univ., he practiced law until he was elected (1913) to the New York supreme court. Cardozo was then appointed (1914) to the court of appeals, elected (1917) for a 14-year term, and elected (1927) chief judge of the court, which, largely through his influence, gained international fame. He was prominent in the efforts of the American Law Institute to restate and simplify the law, and he advocated a permanent agency to function between the courts and legislatures to aid in framing effective legislation. Of Sephardic background, he was active in a number of Jewish movements. He was appointed (1932) by President Herbert Hoover to the Supreme Court to succeed Oliver Wendell Holmes. Cardozo was one of the foremost spokesmen on sociological jurisprudence, and his views on the relation of law to social change made him one of the most influential of U.S. judges. With Justices Louis D. Brandeis and Harlan F. Stone, he voted to uphold much early New Deal legislation, dissenting from the majority opinion. Cardozo expounded his philosophy of law and the judicial process in three classics of jurisprudence: The Nature of the Judicial Process (1921), The Growth of the Law (1924), and The Paradoxes of Legal Science (1928). He also wrote Law and Literature and Other Essays and Addresses (1931).

See the selection of his writings edited by M. E. Hall (1947); biographies by J. P. Pollard (1935, repr. 1970) and A. L. Kaufman (1998); studies by B. H. Levy (rev. ed. 1969) and W. C. Cunningham (1972).

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"Cardozo, Benjamin Nathan." The Columbia Encyclopedia, 6th ed.. . 20 Oct. 2016 <>.

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Cardozo, Benjamin Nathan

Cardozo, Benjamin Nathan (1870–1938) US jurist. He was elected to the New York Supreme Court (1913). Appointed by Herbert Hoover to the US Supreme Court, he served as an associate justice (1932–38). He strove to simplify the law and create an intermediary department between the legislature and the courts. His decisions on New Deal legislation were extremely influential.

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