A TRIUMPH OF QUALITY.
Benjamin Nathan Cardozo (1870-1938) is on everyone's list of significant American judges. Yet we have had to wait until now to get a biography that does him justice. In 1957 the author was persuaded by Justice Felix Frankfurter and Cardozo's last law clerk, Joseph Rau, to begin this book. He has done other things but obviously Cardozo has occupied much of his thought in the forty years since.
Cardozo was born into a family of Sephardic Jews who had been in this country since the eighteenth century. Benjamin was educated at home, at one time having Horatio Alger, Jr., as a tutor. He earned the B.A. degree from Columbia College and entered Columbia law school at the age of 19. Two years later he left without a degree and began the practice of law with his older brother. The decision to enter the law was difficult. His father, Albert Cardozo, had been elected to the New York Supreme Court on a Tammany ticket. When Benjamin was two, Albert resigned his judgeship amid charges of corruption. He was never charged but the stain on the family reputation was permanent and the son reflected concern over it on many occasions.
Cardozo's 23 years of private practice are covered quickly because that is not where he made his mark. What is remarkable about them is that he began and continued as an appellate lawyer. He was a master of both the facts and the law of the case and was an aggressive advocate who did everything ethical that he could to win his cases. And he did have a good win record.
Cardozo was elected to the New York Supreme Court in 1914. He did not actively seek the nomination; friends worked for him. To some degree he was the beneficiary of the practice of ethnic and religious ticket balancing. To a greater degree he was chosen because of his undoubted abilities and unquestioned probity. After only five weeks on the Supreme Court, he was designated to sit on the New York Court of Appeals to which he was later elected, and still later elected as chief judge. It was while serving on this court that Cardozo was to make his real mark, and it is on this 18 years of his life that Kaufman spends almost two-thirds of the book.
Professor Kaufman devotes an entire chapter to the Storrs Lectures, published in 1921 as The Nature of the Judicial Process. He lays out the argument, explains what Cardozo was saying, and comments briefly on it. The following ten chapters look at Cardozo's work in a number of areas of the law comparing the actual practices of the judge with his professed principles. Cardozo meant what he told us in these lectures. He was a common law judge quite well aware of his power to make law. He knew that judges are not or should not be the primary policymakers in a democracy. Therefore, he followed precedent and deferred to legislative and executive preferences. Of course, some of his more notable decisions such as MacPherson v. Buick Motor Co. (discussed in detail) are a departure from precedent which he explains in the opinion and later in the lectures. We also find that Cardozo was mindful of the economic impact of possible outcomes on the state; increased costs should be imposed by the legislature, not a judge. I n examining the decisional activity of Cardozo during this period, Kaufman offers the necessary parenthetical explanations of technical terms that make the argument easily accessible to the nonlawyer. He also looks at the decisions with a clear eye and criticizes where it seems to be warranted. The author is admiring but not worshipful.
Cardozo was a judge's judge. He mastered the fact situation presented by the record, he understood and marshaled the precedents, and he constructed logical arguments to reach a decision. He was not a legislator; he confined himself to filling in the gaps in the law. "Innovation for him did not proceed from a personal agenda of social change. Rather, it proceeded from the need to bring common law doctrine into line with evolving social or economic conditions ... 'modern' law, for him, kept pace with change and did not force it" (pp. 358-59).
One of the more interesting aspects of this section is the description of the Court of Appeals at work. That court at that time conducted its "consultations" (conferences) on the basis of a written appraisal by one of the judges. Cardozo was obviously as forceful in arguing for taking a case or for deciding one a particular way as he had been as an advocate for his clients. Interpersonal relations were generally excellent during his entire time on the court, and it is apparent that intellectual persuasion was the primary tool used by the judges in their dealings with each other. There were no deep ideological fissures of the sort that he was to encounter on the United States Supreme Court.
Cardozo's appointment to the United States Supreme Court was a triumph of quality over all other considerations. President Hoover was told that the West would forego its claim to a seat, Justice Stone offered to resign if the appointment of another New Yorker would overload the Court in that direction, and Hoover ignored the party label. For Cardozo, it was a wrenching decision to accept the appointment. He was the chief judge of one of the most respected state courts in the country. He would have to leave not just New York City but the house in which he had lived all of his life. He was not as happy professionally or socially in Washington as he had been in New York. Initially, his opinion assignments were of minor cases and, though he did not explicitly mention it, the interpersonal differences must have pained him. He made an early comment: "I don't find the 'conferences' as satisfactory as the 'consultations' at Albany... .There is nothing like the genuine debate--the painstaking and willing exchange of views--that gave my old court whatever strength it had...I don't believe that I'll ever have the influence here that I had in Albany" (p. 480).
He was right. A short tenure on the Supreme Court is not conducive to making a major mark on national law. He significantly influenced Chief Justice Hughes's opinion in Blaisdell and in Palko he set the pattern for thirty years of selective incorporation of the Bill of Rights into the Fourteenth Amendment. His vote was important in a number of other cases reversing the old Court and approving the New Deal. In the final analysis, Cardozo made his reputation on the New York Court of Appeals and in the various fields of private law. Some of those opinions are still taught in the law schools.
This book sets a standard for future judicial biography. Balanced, clearly written, accessible to any reader, it is excellent. The nonlawyer might be put off initially by the chapters on various areas of private law and Cardozo's impact on them. However, the author explains so clearly and keeps our attention on Cardozo so effectively that the reader's attention does not flag.
ROBERT H. BIRKBY is a member of the political science faculty in Vanderbilt University.