It is noteworthy that President Hoover’s choice, in February 1932, of Benjamin Nathan Cardozo for a place on the Supreme Court as the successor to Justice Oliver Wendell Holmes was greeted with well-nigh universal acclaim. As Cardozo’s colleagues on the New York Court of Appeals said in their affectionate farewell to their “beloved Chief Judge,” “You were appointed neither for political nor geographical considerations, but in defiance of them and because the whole country demanded the one man who could best carry on the great Holmes tradition of philosophic approach to modern American jurisprudence.” Cardozo’s 18 creative years on New York’s highest tribunal and the profound scholarship of his extrajudicial writings had won him an international reputation as a humane, imaginative, and learned judge.
Cardozo (1870–1938) was born in New York City of Portuguese-Jewish parentage. His father, a judge on the New York Supreme Court, resigned from the bench because of his connection with the notorious Tweed ring. This tragic episode, far from discouraging Cardozo from entering the legal profession, seems to have spurred him on to vindicate his family’s good name.
Cardozo received his undergraduate education at Columbia College and studied for two years at Columbia Law School. Without waiting to receive a law degree, he was admitted to the bar in 1891.
By the time his first book appeared in 1903—The Jurisdiction of the Court of Appeals of the State of New York—he had already achieved a wide reputation for his brilliant work in arguing before the state’s appellate courts. He had become “a lawyer’s lawyer.” In 1913 he was elected to the Supreme Court of New York but served for only a few weeks. On the request of the members of the Court of Appeals of New York, Governor Glynn designated him to serve as an associate judge on that court. With the endorsement of both major political parties, he was elected for a full 14-year term in 1917, and with similar backing he was elected chief judge in 1926.
Both his distinctive attitude toward modern problems and his felicitous (some have called it elegant or florid) style of expression were evident in Cardozo’s utterances as a state judge. Whatever the subject matter—torts, contracts, crimes—these opinions were marked by a considered effort to bend the law to the needs of people living in a society that had been transformed by changing industrialism and technology.
Probably his most celebrated opinion on the Court of Appeals was that in MacPherson v. Buick Motor Company (217 N.Y. 382), and it well illustrates his approach. The MacPherson case was a suit for damages for personal injuries resulting from the collapse of the defective steering wheel of a 1914 Buick. It was argued by the company’s lawyers that the manufacturer was not liable because the contract was with the dealer from whom the car had been purchased. They relied on an old English case in which the court had held that the contractor who had sold the post office department an imperfect stagecoach was not liable for the injuries sustained by the driver of the coach. Cardozo spoke for a majority of the Court of Appeals in refusing to be bound by this precedent and stated: “Precedents drawn from the days of travel by stage-coach do not fit the conditions of travel to-day. The principle that danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.”
But the student of Cardozo’s philosophy of law and of justice need not depend only on inferences to be gleaned from judicial opinions. While serving on the Court of Appeals, Cardozo found time to write four books in which he systematically set forth his fundamental ideas. Although most apparent in his now classic little volume, The Nature of the Judicial Process, published in 1921, Cardozo’s deep concern with the subtleties of the function performed by judges permeates his other major extrajudicial writings—The Growth of the Law (1924); The Paradoxes of Legal Science (1928); and Law and Literature (1921−1930). As Justice Felix Frankfurter wrote soon after Cardozo’s death: “Perhaps a few, but at best a very few, judges had as keen an insight into the peculiar role of the judge in the American scheme” (Frankfurter 1939, p. 440). And Edwin W. Patterson, the first Cardozo professor of jurisprudence at Columbia Law School, described The Nature of the Judicial Process as “the most original and significant of his works” (see Patterson in Cardozo [1921−1939] 1947, p. ix).
Cardozo confessed that he spent many “moments of introspection” searching for the answer to his own simply worded question: “What is it that I do when I decide a case?” In most instances, as he saw it, lawyers and judges are merely busy looking for applicable precedents; they are engaged in a more or less mechanical process of, figuratively speaking, “matching colors.” There are occasions, however, when the constitutional provisions that have been invoked are not at all clear, or legislation on the subject is either lacking or ambiguous, or there are conflicting precedents. When such situations arise, the judge has an opportunity to fill in the “gaps” by inventing new principles or by resourcefully adapting old ones. Cardozo suggested that in these cases there were four possible roads to decision:
The directive force of a principle may be exerted along the line of logical progression; this I will call the rule of analogy or the method of philosophy; along the line of historical development; this I will call the method of evolution; along the line of the customs of the community; this I will call the method of tradition; along the lines of justice, morals and social welfare, the mores of the day; and this I will call the method of sociology. (1921, pp. 30−31)
In discussing the role of the judge as a legislator (1921, pp. 98−171), Cardozo made it clear that to the modern jurist considerations of social utility are particularly challenging. “The final cause of law,” he observed categorically, “is the welfare of society” (1921, p. 66). In pursuing that goal, the judge must feel free to consult all available sources of knowledge and insight: “Courts know today that statutes are to be viewed not in isolation or in vacuo, as pronouncements of abstract principles for the guidance of an ideal community, but in the setting and framework of present-day conditions, as revealed by the labors of economists and students of the social sciences in our own country and abroad” (1921, p. 81).
Although his tenure on the Supreme Court was unfortunately of short duration (a mere six years), Cardozo succeeded in leaving a permanent imprint on the Court’s constitutional jurisprudence. On the great issues that deeply divided the court during the years of the depression, he aligned himself with Justices Louis D. Brandeis and Harlan Fiske Stone, who were occasionally joined by Chief Justice Charles Evans Hughes and Justice Owen J. Roberts. More than once he spoke for the dissenters in vindicating the right of government, national and state, to foster programs of economic regulation and social welfare.
When, in the spring of 1937, the Court began to be more receptive to New Deal experiments, he helped to form the new majorities, as in the cases upholding the constitutionality of the National Labor Relations Act and the Social Security Act. Indeed, Cardozo was the Court’s spokesman in the two principal social security cases (Steward Machine Company v. Davis, 301 U.S. 548, 1937; Helvering V. Davis, 301 U.S. 619, 1937). His assertion in the first of these cases, “It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare,” may justly be regarded as a reversal of the interpretation of the general welfare clause of the constitution that had served as the basis for the invalidation of the Agricultural Adjustment Act the year before (Steward Machine Company v. Davis, 301 U.S. 548, 586−587, 1937).
It was in the same year that Cardozo also wrote his best-known opinion in a civil liberties case. Although he led the Court in denying the particular constitutional right claimed by the criminal defendant, he used the occasion to analyze the philosophy (the “rationalizing principle,” he called it) that has served as the justification for an important doctrinal innovation. This is the basis of the process by which the Supreme Court, beginning in the 1920s, has been reading into the “liberty” that the fourteenth amendment protects against violation by the states some of the rights guaranteed by the federal bill of rights against abridgment by Congress. His words explaining this significant development have come to be widely quoted:
We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption. These in their origin were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. … This is true, for illustration, of freedom of thought and speech. Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. … So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. (Palko v. Connecticut, 302 U.S. 319, 326−327, 1937)
Samuel J. Konefsky
(1903) 1909 The Jurisdiction of the Court of Appeals of the State of New York. 2d ed. Albany: Banks.
(1921) 1960 The Nature of the Judicial Process. New Haven: Yale Univ. Press.
(1921−1930) 1931 Law and Literature and Other Essays and Addresses. New York: Harcourt.
(1921−1939) 1947 Selected Writings. Edited by Margaret E. Hall, with a foreword by Edwin W. Patterson. New York: Fallon.
1924 The Growth of the Law. New Haven: Yale Univ. Press.
1928 The Paradoxes of Legal Science. New York: Columbia Univ. Press.
Essays Dedicated to Mr. Justice Cardozo. 1939 Columbia Law Review 39, no. 1.
Frankfurter, Felix 1939 Mr. Justice Cardozo and Public Law. Harvard Law Review 52:440−470. → Also published in Volume 39 of the Columbia Law Review and Volume 48 of the Yale Law Journal.
Hellman, George S. 1940 Benjamin N. Cardozo: American Judge. New York: McGraw-Hill.
Levy, Beryl H. (1938) 1965 Cardozo and Frontiers of Legal Thinking: With Selected Opinions. Port Washington, N.Y.: Kennikat.
Pollard, Joseph P. 1935 Mr. Justice Cardozo: A Liberal Mind in Action. New York: Yorktown.