CARDOZO, BENJAMIN NATHAN

CARDOZO, BENJAMIN NATHAN

Benjamin Nathan Cardozo was a New York statecourt 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 pass-
ing the bar examination, Cardozo began practic-
ing 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 exten-
sive 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 addi-
tion, 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 asso-
ciate 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 oldage
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 firstyear
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.

FURTHER READINGS
Congressional Quarterly. 1989. Guide to the U.S. Supreme
Court. 2d ed. Washington, D.C.: Congressional Quarterly.
Elliott, Stephen P., ed. 1986. A Reference Guide to the United
States Supreme Court. New York: Facts on File.
Kaye, Judith S. 1999 “Poetic Justice: He Was a Great Common
Law Judge, Responsive To his Times; As Business
Relationships Became More Complex and Attenuated,
Benjamin Nathan Cardozo Created New—and Lasting—
Standards.” American Lawyer 21 (December).
Levy, Beryl H. 1938. Cardozo and Frontiers of Legal Thinking.
Port Washington, N.Y.: Kennikat Press.
Pollard, Joseph P. 1970. Mr. Justice Cardozo: A Liberal Mind
in Action.Westport, Conn.: Greenwood Press.