Benjamin N. Cardozo
Associate Justice of the Supreme Court of the United States
Term in office
March 14, 1932 – July 9, 1938 Preceded by Oliver Wendell Holmes, Jr. Succeeded by Felix Frankfurter Nominated by Herbert Hoover Born May 24, 1870
New York, New York
Died July 9, 1938
Benjamin Nathan Cardozo (May 24, 1870–July 9, 1938) was a distinguished American jurist who is remembered not only for his landmark decisions on negligence but also his modesty, philosophy and writing style, which is considered remarkable for its prose and vividness. Critics, however, decry his opinions as exercises in verbosity which fail to set forth usable, guiding legal principles.
Born in New York City to Albert and Rebecca Nathan Cardozo, Benjamin was a twin, born with his sister Emily. Cardozo's ancestors were Spanish and Portuguese Jews who immigrated to the United States in the 1740s and 1750s from Portugal via the Netherlands and England. The surname Cardozo (Cardoso) is of Portuguese origin.
Albert Cardozo was himself a justice of 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.
Rebecca Cardozo died in 1879, and Benjamin was raised during much of his childhood by his sister Nell, who was 11 years older. At age 15, Cardozo entered Columbia University 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 justice. After only two years, and without a law degree, Cardozo left Columbia to practice law.
Career on the New York Court of Appeals
From 1891 to 1914, Benjamin Cardozo practiced law in New York City.
In the November 1913 elections, Cardozo was narrowly elected to the New York Supreme Court. Cardozo took office on January 5, 1914. Less than a month later, Cardozo was elevated to the New York Court of Appeals, the highest court in the state. He was the first Jew to serve on the Court of Appeals and became Chief Judge on January 1, 1927.
His tenure was marked by a number of original rulings, in tort and contract law in particular. In 1921, Cardozo gave the Storrs Lectures at Yale University, which was later published as The Nature of the Judicial Process, 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. His majority opinion in Wood v. Lucy, Lady Duff-Gordon was both a minor cause celebre at the time and an influential development in the law of contract consideration; the majority opinion he penned in Palsgraf v. Long Island Railroad Co. in 1928 was important in the development of the concept of the proximate cause in tort law. His decision in MacPherson v. Buick Motor Co. help signal the end of the law's entrallment with privity as a source of duty in products liability. He used the term Serbonian bog. In DeCicco v. Schweizer he approached the issue of third part beneficiary law in a contract for marriage case.
Service on the US Supreme Court
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" (New York Times, February 16, 1932, p. 1). He was confirmed by a unanimous voice vote in the Senate on February 24 (New York Times, February 25, 1932, p. 1). 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" (New York Times, March 2, 1932, p. 13). 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 Coolidge that he should nominate Cardozo rather than himself back in 1925 (Handler, 1995)). 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 the second Jew, after Louis Brandeis, to be appointed to the Supreme Court. Because of his Iberian roots and fluency in Spanish, a few commentators consider him to have been the first Hispanic Justice as well, although his family origins were in Portugal rather than Spain. In his years as an Associate Justice, he handed down opinions that stressed the necessity for the law to adapt to the realities and needs of modern life.
During his tenure on the United States Supreme Court, Cardozo authored a host of influential opinions, whether writing for the majority or writing in concurrence or dissent.  His most famous was 1937's Palko v. Connecticut which rationalized the Court's previous holdings incorporating specific portions of the Bill of Rights against the states via the Due Process Clause of the Fourteenth Amendment as declaring that the due process clause incorporated those rights which were "implicit in the concept of ordered liberty." Though Palko's result was overturned in 1969's Benton v. Maryland, Cardozo's analysis of the Due Process Clause has never been displaced.
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 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. 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.
Of the six children born to Albert and Rebecca Cardozo, only Emily married, and she and her husband did not have any children. As far as is known, Benjamin Cardozo led the life of a celibate. As an adult, Cardozo no longer practiced his faith, but remained proud of his Jewish heritage.
In his own words
Cardozo's opinion of himself shows somewhat of the same flair as his 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.
Cardozo struck a blow for duty in a railway case where boys in New York City were using a poorly fenced off area of the railway as a jumping off point for diving in the river on a hot summer day. In Hynes v. New York Central Railway Company, 231 N.Y. 229 (1921) he held that the defendant railway owed a duty of care despite the victims being trespassers.
He also recast duty in relational terms in MacPherson v. Buick Motor Company.
In Berkey v. Third Avenue Railway, 244 N.Y. 84 (1926), Cardozo pierced the corporate veil saying that the parent subsidiary relationship is a legal metaphor:
- The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. We say at times that the corporate entity will be ignored when the parent corporation operates a business through a subsidiary which is characterized as an 'alias' or a 'dummy.'... Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent. (pp. 93–94)
Sites and buildings named after Cardozo
- Cardozo High School in Queens, New York
- Benjamin N. Cardozo School of Law at Yeshiva University in New York City
- U. St./African-American Civil War Memorial/Cardozo Metro Stop in Washington, DC
- Benjamin N. Cardozo Lodge #163 http://www.cardozospeaks.org
References and Other Commentary
- Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton, Revised edition. Rowman & Littlefield, 1999.
- Lawrence A. Cunningham, Cardozo and Posner: A Study in Contracts, 36 William & Mary Law Review 1379 (1995)
- Milton Handler, "Stone's Appointment by Coolidge," in 16 The Supreme Court Historical Society Quarterly 3 (1995) p. 4.
- Andrew L. Kaufman, Cardozo (Harvard U. Press 2000)
- Richard A. Posner, Cardozo: A Study in Reputation (U. Chicago Press 1993)
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