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).
• 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.