Benjamin N. Cardozo

For more information on Benjamin Nathan Cardozo, visit Britannica.com.

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

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.

See also Incorporation doctrine; Palko v. Connecticut

Sources

• Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921).
• Andrew L. Kaufman, Cardozo (Cambridge: Harvard University Press, 1998).
• Richard A. Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990)

(1870-1938), lawyer and associate justice, U.S. Supreme Court. Born in New York, Cardozo attended Columbia College and Law School but left without taking a law degree. He pursued in essence the calling of a barrister, that is, serving as counsel to other lawyers. He soon gained a reputation as a "lawyer's lawyer," especially in complicated commercial cases.

President William Howard Taft offered Cardozo a federal district judgeship, but Cardozo was supporting his two sisters and declined because of the meager salary. In 1913, however, reformers secured his election as a judge on the Supreme Court of New York, the lowest court in the state system. Within six weeks Governor Martin Glynn named him to the state's highest court, the Court of Appeals, on which he served for the next sixteen years, the last six as chief judge.

The "lawyer's lawyer" soon became the "judge's judge," and he made the Court of Appeals the second most distinguished tribunal in the land. Especially in commercial law, Cardozo's opinions carried great weight in New York and throughout the country. His decision in the landmark case of McPherson v. Buick Motor Co. (1916) changed the very nature of product liability law. Abolishing the old rule of privity, by which only those with a direct contractual relationship to the manufacturer could sue on a defective product, Cardozo made manufacturers directly liable to the consumer.

If lawyers and judges appreciated his legal skills, scholars esteemed his insights into forces that affected both judging and the law. Legal realists argued that a variety of nonlegal matters determined judicial decision making, an idea heretical to those who believed that judges did no more than proclaim established legal truths. In his classic Yale lectures, The Nature of the Judicial Process (1921), Cardozo explicitly declared that many factors influenced how judges decided cases. He also argued that rules of law should be judged not by their antiquity or logic but by the extent to which they contributed to society's welfare.

On the retirement of Oliver Wendell Holmes in 1932, President Herbert Hoover was besieged with demands that he name Cardozo to the Supreme Court. With two New Yorkers--Charles Evans Hughes and Harlan Fiske Stone--already on the bench, Hoover feared that a third would create a geographical imbalance. Senator William Borah of Idaho calmed the president's fears; Cardozo, he said, belonged to Idaho as much as to New York.

On the bench Cardozo joined the liberal bloc of Louis D. Brandeis and Stone. In his six terms he showed promise of becoming one of the Court's great justices, but he died before he could leave a significant corpus of opinions. One decision, however, Palko v. Connecticut (1937), determined the debate over the application of the Bill of Rights to the states through the Fourteenth Amendment. Cardozo argued that not all the guarantees of the first eight amendments applied to the states, only those that constituted "the very essence of a scheme of ordered liberty." This left it in the hands of judges to decide which rights fit the definition and which do not. In the 1940s, Justice Felix Frankfurter successfully carried on Cardozo's call for selective incorporation over Justice Hugo Black's demand for total incorporation.

Bibliography:

Beryl H. Levy, Cardozo and the Frontiers of Legal Thinking (1969).

Author:

Melvin I. Urofsky

See also Supreme Court.

Cardozo, Benjamin Nathan (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).

Bibliography

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).

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.

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 old-age 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.

Quotes:

"We are what we believe we are"

Benjamin N. Cardozo
Associate Justice of the United States Supreme Court
In office March 2, 1932[1] – July 9, 1938
Nominated by	Herbert Hoover
Preceded by	Oliver Wendell Holmes, Jr.
Succeeded by	Felix Frankfurter
Chief Judge of the New York Court of Appeals
In office January 1, 1927 – March 7, 1932
Preceded by	Frank H. Hiscock
Succeeded by	Cuthbert W. Pound
Associate Judge of the New York Court of Appeals
In office February 1914 – December 31, 1926
Personal details
Born	May 24, 1870 New York City, New York
Died	July 9, 1938 (aged 68) Port Chester, New York

Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was a well-known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style. Cardozo served on the Supreme Court only six years, from 1932 until his death in 1938, and the majority of his landmark decisions were delivered during his eighteen year tenure on the New York Court of Appeals, the highest court of that state.

Contents

• 1 Biography
  • 1.1 Early years
  • 1.2 New York Court of Appeals
  • 1.3 United States Supreme Court
  • 1.4 Death
  • 1.5 Personal life
• 2 The question of Cardozo's ethnicity
• 3 Cases
• 4 In his own words
• 5 Schools, organizations, and buildings named after Cardozo
• 6 Bibliography
• 7 See also
• 8 Notes
• 9 Further reading
• 10 External links

Biography

Cardozo was born in New York City, the son of Rebecca Washington (née Nathan) and Albert Jacob Cardozo.^[2] Both Cardozo's maternal grandparents, Sara Seixas and Isaac Mendes Seixas Nathan, and his paternal grandparents, Ellen Hart and Michael H. Cardozo, were Sephardi Jews of the Portuguese Jewish community affiliated with Manhattan's Congregation Shearith Israel; their families emigrated from England before the American Revolution, and were descended from Jews who left the Iberian Peninsula for Holland during the Inquisition.^[2] Cardozo family tradition held that their ancestors were Marranos from Portugal,^[2] although Cardozo's ancestry has not been firmly traced to Portugal.^[3] "Cardozo" (archaic spelling of Cardoso), "Seixas" and "Mendes" are common Portuguese surnames.

Cardozo was a twin, with his sister Emily. He was a cousin of the poet Emma Lazarus. He was named for his uncle, Benjamin Nathan, a vice president of the New York Stock Exchange and the victim of a famous unsolved murder case in 1870.

Albert Cardozo was himself a judge on the Supreme Court of New York (the state's general trial court) until he was implicated in a judicial corruption scandal, sparked by the Erie Railway takeover wars, in 1868. The scandal led to the creation of the Association of the Bar of the City of New York and Albert's resignation from the bench. After leaving the court, he practiced law until his death in 1885.

Early years

Rebecca Cardozo died in 1879 when Benjamin was quite young. He was raised during much of his childhood by his sister Nell, who was 11 years older. One of his tutors was Horatio Alger.^[4] At age 15, Cardozo entered Columbia University^[4] where he was elected to Phi Beta Kappa,^[5] and then went on to Columbia Law School in 1889. Cardozo wanted to enter a profession that could materially aid himself and his siblings, but he also hoped to restore the family name, sullied by his father's actions as a judge. When Cardozo entered Columbia Law School, the program was only two years long; in the midst of his studies, however, the faculty voted to extend the program to three years. Cardozo declined to stay for an extra year, and thus left law school without a law degree.^[6] He passed the bar in 1891 and began practicing appellate law alongside his older brother.^[4] Benjamin Cardozo practiced law in New York City until 1914.^[4] In November 1913, Cardozo was narrowly elected to a 14-year term on the New York Supreme Court, taking office on January 1, 1914.

New York Court of Appeals

In February 1914, Cardozo was designated to the New York Court of Appeals under the Amendment of 1899,^[7] and reportedly was the first Jew to serve on the Court of Appeals. In January 1917, he was appointed to a regular seat on the Court of Appeals to fill the vacancy caused by the resignation of Samuel Seabury, and in November 1917, he was elected on the Democratic and Republican tickets to a 14-year term on the Court of Appeals. In 1926, he was elected, on both tickets again, to a 14-year term as Chief Judge. He took office on January 1, 1927, and resigned on March 7, 1932 to accept an appointment to the United States Supreme Court.

His tenure was marked by a number of original rulings, in tort and contract law in particular. This is partly due to timing; rapid industrialization was forcing courts to look anew at old common law components to adapt to new settings.^[4] In 1921, Cardozo gave the Storrs Lectures at Yale University, which were later published as The Nature of the Judicial Process (On line version), a book that remains valuable to judges today. Shortly thereafter, Cardozo became a member of the group that founded the American Law Institute, which crafted a Restatement of the Law of Torts, Contracts, and a host of other private law subjects. He wrote three other books that also became standards in the legal world.^[4]

United States Supreme Court

Justice Cardozo in his robes

In 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes. The New York Times said of Cardozo's appointment that "seldom, if ever, in the history of the Court has an appointment been so universally commended."^[8] Democratic Cardozo's appointment by a Republican president has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but strictly based on the nominee's contribution to law.^[9] However, Hoover was running for re-election, eventually against Franklin Roosevelt, so a larger political calculation may have been operating.

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24.^[10] On a radio broadcast on March 1, 1932, the day of Cardozo's confirmation, Clarence C. Dill, Democratic Senator for Washington, called Hoover's appointment of Cardozo "the finest act of his career as President".^[11] The entire faculty of the University of Chicago Law School had urged Hoover to nominate him, as did the deans of the law schools at Harvard, Yale, and Columbia. Justice Harlan Fiske Stone strongly urged Hoover to name Cardozo, even offering to resign to make room for him if Hoover had his heart set on someone else (Stone had in fact suggested to Calvin Coolidge that he should nominate Cardozo rather than himself back in 1925).^[12] Hoover, however, originally demurred: there were already two justices from New York, and a Jew on the court; in addition, Justice James McReynolds was a notorious anti-Semite. When the chairman of the Senate Foreign Relations Committee, William E. Borah of Idaho, added his strong support for Cardozo, however, Hoover finally bowed to the pressure.

Cardozo was a member of the Three Musketeers along with Brandeis and Stone, which was considered to be the liberal faction of the Supreme Court. In his years as an Associate Justice, he handed down opinions that stressed the necessity for the tightest adherence to the tenth amendment.

Death

In late 1937, Cardozo had a heart attack, and in early 1938, he suffered a stroke. He died on July 9, 1938, at the age of 68 and was buried in Beth-Olam Cemetery in Queens.^[13][14][15] His death came at a time of much transition for the court, as many of the other justices died or retired during the late 1930s and early 1940s.

Personal life

Cardozo's former residence in Washington, D.C.

As an adult, Cardozo no longer practiced his faith (he identified himself as an "agnostic"), but remained proud of his Jewish heritage.^[16]

Of the six children born to Albert and Rebecca Cardozo, only Emily, his twin sister, married, and she and her husband did not have any children. As far as is known, Benjamin Cardozo led a celibate life. The fact that Cardozo was unmarried and was personally tutored by the writer Horatio Alger (who had been accused of inappropriate sexual relations with young boys) has led some of Cardozo's biographers to insinuate that Cardozo was homosexual, but no real evidence exists to corroborate this possibility. Constitutional law scholar Jeffrey Rosen noted in a New York Times Book Review of Richard Polenberg's book on Cardozo:

“

Polenberg describes Cardozo's lifelong devotion to his older sister Nell, with whom he lived in New York until her death in 1929. When asked why he had never married, Cardozo replied, quietly and sadly, I never could give Nellie the second place in my life. Polenberg suggests that friends may have stressed Cardozo's devotion to his sister to discourage rumors that he was sexually dysfunctional, or had an unusually low sexual drive or was homosexual. But he produces no evidence to support any of these possibilities, except to note that friends, in describing Cardozo, used words like beautiful, exquisite, sensitive or delicate.[17]

”

Andrew Kaufman, a Harvard Law School professor and Cardozo biographer, notes that "Although one cannot be absolutely certain, it seems highly likely that Cardozo lived a celibate life." Judge Learned Hand is quoted in the book as saying about Cardozo: "He [had] no trace of homosexuality anyway."^[18]

The question of Cardozo's ethnicity

Cardozo was the second Jew, after Louis Brandeis, to be appointed to the Supreme Court.

Since Cardozo was a member of the Spanish and Portuguese Jewish community, there has been recent discussion as to whether he should be considered the 'first Hispanic justice,' a notion which is disputed.^[19][20][21] Cardozo-biographer Kaufman, for example, questioned the usage of the term "Hispanic" in the justice's lifetime, stating: "Well, I think he regarded himself as a Sephardic Jew whose ancestors came from the Iberian Peninsula.”^[22]

It has also been asserted that Cardozo himself "confessed in 1937 that his family preserved neither the Spanish language nor Iberian cultural traditions".^[23] Both the National Association of Latino Elected Officials and the Hispanic National Bar Association consider Sonia Sotomayor to be the first unequivocally Hispanic justice.^[19][22]

Cases

New York Courts

• Schloendorff v. Society of New York Hospital, 105 N.E. 92 (1914) it is necessary to get informed consent from a patient before operation, but a non-profit hospital was not vicariously liable (the latter aspect was reversed in 1957)
• MacPherson v. Buick Motor Co., 111 N.E. 1050 (1916) ending privity as a source of duty in products liability, ruling that manufacturers of products could be held liable for injuries to consumers.
• DeCicco v. Schweizer, 117 N.E. 807 (1917) where Cardozo approached the issue of third party beneficiary law in a contract for marriage case.
• Wood v. Lucy, Lady Duff-Gordon, 118 N.E. 214 (1917) on a promise to maybe do something constituting consideration in a contract.
• Martin v. Herzog, 126 N.E. 814 (1920) breach of statutory duty establishes negligence, and the elements of the claim includes proof of causation
• Jacob & Youngs v. Kent, 230 N.Y. 239 (1921), substantial performance of a contract does not lead to a right to terminate, only damages.
• Hynes v. New York Central Railroad Company, 131 N.E. 898 (1921), a railway owed a duty of care despite the victims being trespassers.
• Berkey v. Third Avenue Railway, 244 N.Y. 84 (1926), the corporate veil cannot be pierced, even in favor of a tort victim unless domination of a subsidiary by the parent is complete.
• Wagner v. International Railway, 232 N.Y. 176 (1926) the rescue doctrine. "Danger invites rescue. The cry of distress is the summons to relief [...] The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."
• Meinhard v. Salmon, 164 N.E. 545 (1928) the fiduciary duty of business partners is, "Not honesty alone, but the punctilio of an honor the most sensitive."
• Palsgraf v. Long Island Rail Road Co., 162 N.E. 99 (1928) the development of the concept of the proximate cause in tort law.
• Murphy v. Steeplechase Amusement Park, 166 N.E. 173 (1929) denied a right to recover for knee injury from riding "The Flopper" funride since the victim "assumed the risk."
• Ultramares v. Touche, 174 N.E. 441 (1931) on the limitation of liability of auditors

US Supreme Court

• Nixon v. Condon, 286 U.S. 73 (1932) all white Texas Democratic Party unconstitutional
• Welch v. Helvering, 290 U.S. 111 (1933) which concerns Internal Revenue Code Section 162 and the meaning of "ordinary" business deductions.
• Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) dissenting from a narrow interpretation of the Commerce Clause.
• A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) invalidating poultry regulations as outside the commerce clause power.
• Carter v. Carter Coal Company, 298 U.S. 238 (1936) dissenting over the scope of the Commerce Clause.
• Steward Machine Company v. Davis, 301 U.S. 548 (1937) unemployment compensation and social security were constitutional
• Helvering v. Davis, 301 U.S. 619 (1937) social security not a contributory programme
• Palko v. Connecticut, 302 U.S. 319 (1937) the due process clause incorporated those rights which were "implicit in the concept of ordered liberty."

In his own words

Cardozo's opinion of himself shows some of the same flair as his legal opinions:

In truth, I am nothing but a plodding mediocrity—please observe, a plodding mediocrity—for a mere mediocrity does not go very far, but a plodding one gets quite a distance. There is joy in that success, and a distinction can come from courage, fidelity and industry.

Schools, organizations, and buildings named after Cardozo

• Benjamin N. Cardozo School of Law at Yeshiva University in New York City
• Cardozo College, a dormitory building at the State University of New York at Stony Brook
• Benjamin N. Cardozo Lodge #163, Knights of Pythias^[24]
• Benjamin N. Cardozo High School in the borough of Queens in New York City

Bibliography

• Cardozo, Benjamin N., (1921) Nature of the Judicial Process, The Storrs Lectures Delivered at Yale University -- On line hyper-linked version produced and proofed by Lee Fennell. Including a "stylized reinterpretation of an etching of Mr. Justice Cardozo by William Meyerowitz, (a reproduction of the original drypoint" appeared in a 1939 book of Essays Dedicated to Mr. Justice Cardozo).
• Cardozo, Benjamin N. Contributor: Bell, Clara. The Altruist in Politics.

See also

• Demographics of the Supreme Court of the United States
• List of Justices of the Supreme Court of the United States
• List of law clerks of the Supreme Court of the United States
• List of United States Chief Justices by time in office
• List of U.S. Supreme Court Justices by time in office
• United States Supreme Court cases during the Hughes Court

Notes

1. ^ "Federal Judicial Center: Benjamin Cardozo". 2009-12-12. http://www.fjc.gov/servlet/tGetInfo?jid=374. Retrieved 2009-12-12.
2. ^ ^{a b c} Kaufman, Andrew L. (1998). Cardozo. Harvard University Press. pp. 6–9. ISBN 0674096452. http://books.google.com/?id=eOJ8QbxAHOIC.
3. ^ Mark Sherman, First Hispanic justice? Some say it was Cardozo, The Associated Press, 2009.
4. ^ ^{a b c d e f} Christopher L. Tomlins (2005). The United States Supreme Court. Houghton Mifflin. pp. 467. ISBN 9780618329694. http://books.google.com/?id=Fy8DjOIxDm0C. Retrieved 2008-10-21.
5. ^ Supreme Court Justices Who Are Phi Beta Kappa Members, ‘’Phi Beta Kappa website’’, accessed Oct 4, 2009
6. ^ Levy, Beryl Harold (November 2007). "Realist Jurisprudence and Prospective Overruling". New York Review of Books LIV (17): 10, n. 31.
7. ^ Designation in NYT on February 3, 1914
8. ^ "Cardozo is named to Supreme Court". New York Times. 1932-02-16. http://select.nytimes.com/gst/abstract.html?res=F40913FE355A16738DDDAF0994DA405B828FF1D3.
9. ^ James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. ISBN 9780743272261. http://books.google.com/?id=zxBAnuWpg5kC. Retrieved 2008-10-20.
10. ^ (New York Times, February 25, 1932, p. 1)
11. ^ (New York Times, March 2, 1932, p. 13)
12. ^ (Handler, 1995)
13. ^ Benjamin Cardozo memorial at Find a Grave.
14. ^ Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook Supreme Court Historical Society at Internet Archive.
15. ^ See also, Christensen, George A., Here Lies the Supreme Court: Revisited, Journal of Supreme Court History, Volume 33 Issue 1, Pages 17 - 41 (19 Feb 2008), University of Alabama.
16. ^ Jewish Virtual Library, Benjamin Cardozo.
17. ^ Jeffrey Rosen, NYT Nov. 2, 1997
18. ^ See Andrew Kaufman, Cardozo (Cambridge: Harvard University Press, 2000) at 89.
19. ^ ^{a b} "'Cardozo was first, but was he Hispanic?,' USA Today, May 27, 2009". May 27, 2009. http://www.usatoday.com/news/washington/judicial/2009-05-26-courtcardozo_N.htm. Retrieved 2009-06-02.
20. ^ "Mark Sherman, 'First Hispanic Justice? Some Say It Was Cardozo,' Associated Press May 26, 2009". http://abcnews.go.com/Politics/wireStory?id=7682271. Retrieved 2009-06-02.^{[dead link]}
21. ^ "Robert Schlesinger, Would Sotomayor be the First Hispanic Supreme Court Justice or Was it Cardozo? US News & World Report May 29, 2009". http://www.usnews.com/blogs/robert-schlesinger/2009/05/26/would-sotomayor-be-the-first-hispanic-supreme-court-justice-or-was-it-cardozo.html.
22. ^ ^{a b} "Neil A. Lewis, 'Was a Hispanic Justice on the Court in the ’30s?,' New York Times, May 26, 2009". The New York Times. May 27, 2009. http://www.nytimes.com/2009/05/27/us/27hispanic.html?_r=1. Retrieved April 26, 2010.
23. ^ Aviva Ben-Ur, "East Meets West: Sephardic Strangers and Kin," Sephardic Jews in America: A Diasporic History (New York: New York University Press, 2009), p. 86.
24. ^ * * * Benjamin N. Cardozo Lodge at www.cardozospeaks.org

Further reading

• Abraham, Henry J. (1999). Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (Revised ed.). Lanham: Rowman & Littlefield. ISBN 0847696049.
• Cardozo, Benjamin N. (1957). An Introduction to Law. Cambridge: Harvard Law Review Association. (Chapters by eight distinguished American judges).
• Cunningham, Lawrence A. (1995). "Cardozo and Posner: A Study in Contracts". William & Mary Law Review 36: 1379. SSRN 678761.
• Cardozo, Benjamin N. [1870-1938]. Essays Dedicated to Mr. Justice Cardozo. [N.p.]: Published by Columbia Law Review, Harvard Law Review, Yale Law Journal, 1939. [143] pp. Contributors: Harlan Fiske Stone, the Rt. Hon. Lord Maugham, Herbert Vere Evatt, Learned Hand, Irving Lehman, Warren Seavey, Arthur L. Corbin, Felix Frankfurter. Also includes a reprint of Cardozo’s essay “Law And Literature” with an foreword by James M. Landis.
• Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1568021267.
• Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0791013774.
• Frankfurter, Felix, 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.
• Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356.
• Handler, Milton (1995). "Stone's Appointment by Coolidge". The Supreme Court Historical Society Quarterly 16 (3): 4.
• Kaufman, Andrew L. (1998). Cardozo. Cambridge, MA: Harvard University Press. ISBN 0674096452.
• Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543.
• Polenberg, Richard (1997). The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge, Massachusetts: Harvard University Press. pp. 320. ISBN 0674960513; ISBN 978-0674960510.
• Posner, Richard A. (1990). Cardozo: A Study in Reputation. University of Chicago Press. ISBN 0226675556.
• Seavey, Warren A., 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
• Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590. ISBN 0815311761.

External links

• Benjamin N. Cardozo at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
• Works by Benjamin N. Cardozo at Project Gutenberg
• Benjamin Cardozo Memorial at Find A Grave.
• Benjamin Cardozo at Michael Ariens.com.
• History of the Court, the Hughes Court at Supreme Court Historical Society.
• Listing and portrait of Benjamin N. Cardozo, New York Court of Appeals judge at Historical Society of the Courts of the State of New York.
• Oyez Project, U.S. Supreme Court media, Benjamin N. Cardozo.

Legal offices
Preceded by Frank H. Hiscock	Chief Judge of the New York Court of Appeals 1927–1932	Succeeded by Cuthbert W. Pound
Preceded by Oliver Wendell Holmes, Jr.	Associate Justice of the Supreme Court of the United States 1932 - 1938	Succeeded by Felix Frankfurter

v · d · eChief Judges of the New York Court of Appeals
Jewett • Bronson • Ruggles • Gardiner • Denio • Johnson • Comstock • Selden • Denio • Davies • Wright • Hunt • Earl • Church • Folger • Andrews • Ruger • Earl • Andrews • Parker • Cullen • Bartlett • Hiscock • Cardozo • Pound • Crane • Lehman • Loughran • Lewis • Conway • Desmond • Fuld • Breitel • Cooke • Wachtler • Simons* • Kaye • Lippman

Supreme Court of the United States

The Hughes Court Chief Justice: Charles Evans Hughes (1930–1941) 1932–1937: W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo 1937–1938: J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo | H. Black 1938: J.C. McReynolds | L.D. Brandeis | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo | H. Black | S.F. Reed

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