Commentary Magazine


Cardozo by Andrew L. Kaufman

Cardozo
by Andrew L. Kaufman
Harvard. 731 pp. $55.00

On any list of outstanding American jurists, Benjamin Nathan Cardozo (1870-1938) must certainly rank near the top. Renowned as a legal mind in his own time, he is held up to law students today both for the force of his reasoning and for the exceptional elegance of his prose. As for his judicial philosophy, which looked beyond the formal properties of law to the impact of the legal system on society at large, over the decades it has spawned an entire cottage industry, not least among liberal activists eager to bend the law to political ends.

Curiously, despite Cardozo’s reputation, there has never been a full-length biography of the man or a systematic study of his thought. Andrew L. Kaufman, a professor of law at Harvard, has at last remedied this situation. His carefully nuanced book, based on 40 years of research and unprecedented access to Cardozo’s papers, opens an illuminating window on the work of a judge and Supreme Court Justice who turns out to be something other than what a good number of his would-be disciples think.

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Cardozo was born in New York City in 1870 to a prosperous family of Sephardi Jews that could trace its lineage in the U.S. back to pre-Revolutionary times. Though he grew up in comfort, his early years were marred by family tragedy. His mother died when he was nine, and two of his sisters were exceedingly frail. To this was added the professional disgrace of his father Albert, a prominent lawyer and Tammany Hall politician who was forced to resign from the state’s top trial court for his flagrant nepotism and politically colored rulings.

As a result, Kaufman shows, young Benjamin developed a fierce desire to redeem the family name. But not through politics: shy and scholarly, in contrast to his glad-handing father, Cardozo poured himself into his studies, entering Columbia College at age fifteen as the youngest member of his class and continuing through to law school. His training complete, he became a member of his elder brother’s firm in New York and made a specialty of appellate practice, taking on difficult cases that had not been resolved in the lower courts.

Within two decades, Cardozo was considered one of the most intelligent and resourceful practitioners of his day—a lawyer’s lawyer—and had won a number of friends in high places. In 1913, drafted as a judicial candidate by an anti-Tammany Hall reform ticket, he was elected to the New York Supreme Court trial division, the very body that his father had left under a cloud of scandal. A year later, the governor appointed him to the Court of Appeals, the state’s highest court (in New York the Supreme Court is not, in fact, supreme); there he would serve until 1932, the last five years as chief judge.

It was on the Court of Appeals that Cardozo made his most enduring mark, not only through his opinions but also through his highly regarded lectures and writings. As a theorist of the law, he came to sympathize with the growing academic movement known as “legal realism.” Realists argued that the law was not an abstract set of principles to be discovered in a body of precedents but, essentially, a social and political institution; judges, therefore, had to face squarely their own role as policy-makers. As Cardozo himself once put it in a characteristically stylish aphorism, “We are not to close our eyes as judges to what we must perceive as men.”

This, needless to say, was a sentiment that resonated with progressives who were looking to the law as an engine of reform. And yet, as Kaufman emphasizes, Cardozo resisted the more radical conclusions both of legal realists and of political progressives. For him, policy ends were only one of several considerations that judges had to take into account. Even though established rules were at times antiquated, needlessly technical, or too rigidly applied, such rules were also essential to preserving fairness and justice: without them, judges would act arbitrarily, thus eroding any basis for determining acceptable conduct.

As Kaufman shows, Cardozo sought a pragmatic compromise, one that would allow judges to affirm legal precedents when they were in fact based on some reasonable principle for distinguishing among present-day cases. His model thus remained the classic common-law tradition of piecewise change. “Justice,” he wrote in a memorable deliverance, “is not to be taken by storm. She is to be wooed by slow advances.”

Cardozo’s balancing act can be observed in many of his decisions on the appellate court. Finding that current legal standards did not accord with the expectations of businessmen in the marketplace—about whom he had learned a great deal from his private practice—he helped to modernize contract law; indeed, his rulings in this area paved the way for the development of the Uniform Commercial Code, which governs most business activity today. On the other hand, he was always careful to keep his personal beliefs, which were on the whole liberal for his day, out of his rulings. To cite one notable instance, he never sought to find technical pretenses to overturn a capital conviction, despite his deeply held opposition to the death penalty.

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Perhaps the real key to Cardozo’s legal philosophy lay in his profound respect for the role of the legislature in the American democratic system. Though no populist—he considered himself part of an enlightened elite—he believed strongly in the presumptive legitimacy of legislative enactments. Occasion to give wide effect to this principle presented itself when Cardozo was appointed to the Supreme Court in 1932.

Franklin D. Roosevelt’s New Deal had come under constitutional challenge, and the Court was deeply divided. On one side was a powerful bloc of four Justices who believed that the President’s social-welfare and regulatory legislation, for all its popularity, lacked constitutional authority and should be overturned. Cardozo vigorously disagreed. As he concluded in a series of key cases upholding the Social Security system, it was not the Court’s role to stand in the way of the urgently felt needs of the nation, especially in light of the Constitution’s declared purpose to promote the “general welfare.”

Through these rulings and others, Cardozo did as much as any other Justice to give legitimacy to the legal regime brought forth by the New Deal, and, especially, to widen the scope of federal power at the expense of the states. This aspect of his career explains, no doubt, the affection in which he is held by those in the legal profession who still look to the federal government, and to the federal courts, to heal all our ills. Yet, as Kaufman’s analysis demonstrates, that is a consequence very much at odds with the complex integrity of Cardozo’s position.

At a time when many judges think nothing of overturning democratic majorities in the name of newly-invented rights, it is, in fact, very useful to recall a creative jurist who took the limits of judicial power with great seriousness. And at a time when our law schools are beset by free-wheeling feminists, deconstructionists, and critical-race theorists, it is no less instructive to read about one whose understanding of the law as a social institution was tempered by a bedrock respect for established standards. This fine book cogently reminds us of what we once had in our jurists, and have yet fully to regain.

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