Benjamin Cardozo (1870–1938)

Benjamin Nathan Cardozo was born into a Sephardic Jewish family in New York City in 1870. Shortly after his birth, his father, Albert Cardozo, was forced to resign his position as a judge on the New York Supreme Court in the wake of charges of corruption. The standard treatments of Benjamin Cardozo’s life and career suggest that he spent the better part of his adult life attempting to transcend, consciously or not, the disgrace of his father’s professional malfeasance.

As a young teenager, Cardozo was tutored at home by Horatio Alger, Jr. He entered Columbia College at the age of fifteen. On graduation, he matriculated into the Columbia Law School at the age of nineteen, leaving after two years of study but without a law degree. After his departure from law school, Cardozo sat for the New York Bar, and thereafter entered into private practice with his brother, specializing in commercial practice and appellate litigation. Most accounts of Cardozo’s work as a lawyer describe him as an extremely able practitioner—a ‘‘lawyer’s lawyer.’’ After slightly more than two decades of law practice, Cardozo was elected to the New York Supreme Court in 1913 and would take his seat as a justice on the court on January 5, 1914. Five weeks into his first term on the trial court, Cardozo was temporarily designated by Governor Martin Glynn to the court of Appeals (the state’s highest court) to help clear a backlog of cases. In 1917, Cardozo was first appointed, and then elected, to a seat on the court of Appeals. It would be through his service on the New York high court that Cardozo would earn his reputation as one of America’s most respected jurists. He served on the court of Appeals until 1932, when Cardozo, a Democrat, was appointed to the U. S. Supreme Court by Republican President Herbert Hoover. Cardozo served as an Associate Justice until his death in 1938.

Cardozo has been considered by many to be the quintessential common law jurist, a judicial craftsman respected not only for the quality of his judicial reasoning, but for the quality of his written opinions as well. Fundamental features of the common law define Cardozo’s understanding of and approach to the judicial process: sensitivity to the importance of the judicial role in a system of judge-made law; and, the centrality of the judge in the process of legal development, maintaining continuity with the past by respect for the principle of stare decisis, while nurturing modest change by keeping the law relevant to changing social circumstances and need. Cardozo accepted the idea that law was not, and should not be, isolated from social life, and that judicial reasoning involved more than the mechanical application of abstract concepts, the relations of which being logically derived. Moreover, he resisted the simplistic notion that the judge is merely an ‘‘empty vessel,’’ an unbiased figure through which the law itself might speak. Instead, Cardozo understood the importance of the subjectivity of the judge. The classic exposition of this view came in Cardozo’s Storrs Lectures, delivered at Yale Law School and published in 1921 under the title, The Nature of the Judicial Process. In one of its most memorable passages, Cardozo observed, There is in each of us a stream of tendency . . .’’ which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces that they do not recognize and cannot name have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life . . . .’’ Roper v. Simmons 125 S.Ct. 1183 (2005).

In this mental background every problem finds its setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.

In other words, we are all—judges included—constituted by the society and culture in which we live; our vision of the world is inevitably a ‘‘shaped’’ vision. To concede, however, that the judicial view is a biased one has obvious implications for the rule of law ideal, if that ideal is understood as government by law and not by persons. Anticipating the possibility of an anxious response to his claims of the inherent subjectivity of the judicial process, Cardozo assured his Yale audience that ‘‘[w]e may wonder sometimes how from the play of all these forces of individualism, there can come anything coherent, anything but chaos and the void. Those are the moments in which we exaggerate the elements of difference. In the end there emerges something which has a composite shape and truth and order.’’ Cardozo urged a mature recognition of the fact that judges are inevitably ‘‘lawmakers,’’ and of the related point that their lawmaking was based on their ideological orientation. The ‘‘business of the judge’’ is not to ‘‘discover [my emphasis] the objective truth.’’ Rather, according to Cardozo, the real duty of the judge is to ‘‘objectify in law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of my time.’’ The judge functions, then, as a translator between his or her community and the law, rearticulating the interests and needs of the community into legal form and, in turn, giving voice to the law so that it may continue to speak relevantly and responsively to the community of which it is a part.

Cardozo has generally been characterized as a progressive and innovative jurist. And, his candor about the nature of the judicial process inevitably could be seen to gesture toward later, more radical developments in legal thought, such as Legal Realism. Yet, Cardozo’s actual judicial work-product generally appears (or is intended to appear) much more modest in aspiration. For example, in MacPherson v. Buick Motor Company, one of the canonical opinions from Cardozo’s corpus, he announces an important shift in the law of negligence, yet strives to characterize the decision as one that has simply made more clear an emerging trend in the development of negligence doctrine.

The vast bulk of Cardozo’s judicial experience came while serving as an appellate judge on New York’s Court of Appeals. Therefore, he rarely dealt with legal issues that today garner so much attention, issues of constitutional law—such issues would come at the very end of his judicial career. However, while on the New York Court of Appeals, he did deal with a number of Criminal Law/criminal procedure matters. And, although usually thought of as a ‘‘liberal’’ judge, Cardozo’s record in this area seems rather more mixed; he often seemed less sympathetic to criminal defendant’s rights than one might think a ‘‘liberal’’ judge would be. For example, in People v. Defore, Cardozo, writing for the court of Appeals, resisted the adoption of the exclusionary rule in New York and held that evidence obtained through an illegal police search of a criminal suspect’s home was, nonetheless, admissible in trial. And, toward the end of his life, while on the U. S. Supreme Court, in his opinion for the Court in Palko v. Connecticut, Cardozo rejected the Petitioner’s argument that the double jeopardy provision of the Fifth Amendment should be incorporated through the Fourteenth Amendment and applied against the State of Connecticut. The result was to uphold a capital murder conviction obtained in the second trial of the defendant, after the state appealed a second-degree murder conviction from the first trial.

Certainly, there were instances when Cardozo was more receptive to the claims of criminal defendants— for example, joining the decision in Powell v. Alabama (otherwise known as one of the ‘‘Scottsboro Cases’’), which found a constitutional right to counsel in state capital trials. Yet, it was primarily in cases dealing with the freedom of speech that Cardozo’s liberal inclinations seemed to be most fully engaged. In Herndon v. State of Georgia, Cardozo authored a strongly worded dissent from a decision that rejected, on procedural grounds, the appeal of an African-American communist who had been imprisoned for violating Georgia’s anti-nsurrection statute by ‘‘inducing others to join in combined resistance to the authority of the state.’’ Here, as elsewhere, Cardozo endorsed Holmes’ ‘‘clear and present danger’’ standard as the test to be used in cases involving the incitement of illegal activity, to balance a state’s interest in preserving order with an individual’s constitutional guarantee of freedom of speech. Indeed, it was in an essay celebrating Holmes’ life and career that Cardozo seemed to offer something more than simply an appreciation of Holmes’ contribution to the protection of freedom of speech, but a glimpse of his own views as well: ‘‘Only in one field is compromise to be excluded, or kept within the narrowest limits. There shall be no compromise of the freedom to think one’s thoughts and speak them, except at those extreme borders where thought merges into action. There is to be no compromise here . . . . There is no freedom without choice, and there is no choice without knowledge—or none that is not illusory.’’

WILLIAM ROSE

References and Further Reading

• Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven: Yale University Press, 1921/1960
• ———, Mr. Justice Holmes, Harvard Law Review 44 (1931): 682–692
• Hall, Margaret E. Selected Writings of Benjamin Nathan Cardozo: The Choice of Tycho Brahe. New York: Matthew Bender, 1947/1975 reprint
• Kaufman, Andrew L. Cardozo. Cambridge: Harvard University Press, 1998
• Polenberg, Richard. The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge: Harvard University Press, 1997
• Posner, Richard. Cardozo: A Study in Reputation. Chicago: University of Chicago Press, 1990

Cases and Statutes Cited

• Herndon v. State of Georgia, 295 U.S. 441 (1935), Cardozo dissenting 
• MacPherson v. Buick Motor Company, 217 N.Y. 382 (1916) 
• Palko v. Connecticut, 302 U.S. 319 (1937) 
• People v. Defore, 242 N.Y. 13 (1926) 
• Powell v. Alabama, 287 U.S. 45 (1932)