About Benjamin Nathan Cardozo
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. Although Cardozo only served on the Supreme Court from 1932 until his death six years later, 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.
Cardozo was born in New York City, the son of Rebecca Washington (née Nathan) and Albert Jacob Cardozo. 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 immigrated from England before the American Revolution, and were descended from Jews who left the Iberian Peninsula for Holland during the Inquisition. Cardozo family tradition held that their ancestors were Marranos from Portugal, although Cardozo's ancestry has not been firmly traced to Portugal. "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.
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. At age 15, Cardozo entered Columbia University where he was elected to Phi Beta Kappa, 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. He passed the bar in 1891 and began practicing appellate law alongside his older brother. Benjamin Cardozo practiced law in New York City until 1914. 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, 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. 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.
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." 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. 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. 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". 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). 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.
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. 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.
As an adult, Cardozo no longer practiced his faith (he identified himself as an "agnostic"), but remained proud of his Jewish heritage.
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. ”
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."
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. 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.”
It has also been asserted that Cardozo himself "confessed in 1937 that his family preserved neither the Spanish language nor Iberian cultural traditions". Both the National Association of Latino Elected Officials and the Hispanic National Bar Association consider Sonia Sotomayor to be the first unequivocally Hispanic justice.
Meinhard v. Salmon, concerning fiduciary duty of business partners -- "Not honesty alone, but the punctilio of an honor the most sensitive."
Wood v. Lucy, Lady Duff-Gordon was both a minor cause célèbre at the time and an influential development in the law of contract consideration.
Palsgraf v. Long Island Rail Road Co. in 1928 was important in the development of the concept of the proximate cause in tort law.
MacPherson v. Buick Motor Co. helped signal the end of the law's attachment with privity as a source of duty in products liability. It is one of Cardozo's landmark decisions wherein he ruled that manufacturers of products could be held liable for injuries to consumers who had purchased the product from a retailer rather than directly from the manufacturer. This is the foundational doctrine underlying nearly all modern product liability lawsuits.
DeCicco v. Schweizer, where Cardozo approached the issue of third party beneficiary law in a contract for marriage case.
Jacob & Youngs v. Kent, in which Cardozo argued that expectation damages arising from a breach of contract are limited to the diminution of the property's value if the undoing of the breach was an economic waste.
Hynes v. New York Central Railroad Company, 231 N.Y. 229, 131 N.E. 898 (N.Y. 1921), which held that the defendant railway owed a duty of care despite the victims being trespassers.
Berkey v. Third Avenue Railway, 244 N.Y. 84 (1926), in which 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)
Ultramares v. Touche, 174 N.E. 441.
Panama Refining Co. v. Ryan, in which he dissented from a narrow interpretation of the Commerce Clause.
Palko v. Connecticut, rationalizing the Court's previous holdings that incorporated specific portions of the Bill of Rights against the states via the Due Process Clause of the Fourteenth Amendment by declaring that the due process clause incorporated those rights which were "implicit in the concept of ordered liberty." Though Palko's specific result (namely the refusal to incorporate the double jeopardy clause upon the states) was overturned in 1969's Benton v. Maryland, Cardozo's broader analysis of the Due Process Clause has never been displaced.
Welch v. Helvering, which concerns Internal Revenue Code Section 162 and the meaning of "ordinary" business deductions.
Murphy v. Steeplechase Amusement Park, where Cardozo denied a right to recover for a knee injury from riding "The Flopper" because plaintiff Murphy had legally "assumed the risk."
Wagner v. International Railway, which created the rescue doctrine, holding that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. "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."
In his own words
Wikiquote has a collection of quotations related to: Benjamin N. Cardozo
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.
Buildings and organizations named after Cardozo
Cardozo High School in Queens, New York
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
Benjamin N.Cardozo High School in Washington, DC
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.
^ "Federal Judicial Center: Benjamin Cardozo". 2009-12-12. Retrieved 2009-12-12.
^ a b c Kaufman, Andrew L. (1998). Cardozo. Harvard University Press. pp. 6–9. ISBN 0674096452.
^ Mark Sherman, First Hispanic justice? Some say it was Cardozo, The Associated Press, 2009.
^ a b c d e f Christopher L. Tomlins (2005). The United States Supreme Court. Houghton Mifflin. pp. 467. Retrieved 2008-10-21.
^ Supreme Court Justices Who Are Phi Beta Kappa Members, ‘’Phi Beta Kappa website’’, accessed Oct 4, 2009
^ Levy, Beryl Harold (November 2007). "Realist Jurisprudence and Prospective Overruling". New York Review of Books LIV (17): 10, n. 31.
^ Designation in NYT on February 3, 1914
^ "Cardozo is named to Supreme Court". New York Times. 1932-02-16.
^ James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. Retrieved 2008-10-20.
^ (New York Times, February 25, 1932, p. 1)
^ (New York Times, March 2, 1932, p. 13)
^ (Handler, 1995)
^ Benjamin Cardozo memorial at Find a Grave.
^ Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook Supreme Court Historical Society at Internet Archive.
^ 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.
^ Jewish Virtual Library, Benjamin Cardozo.
^ Jeffrey Rosen, NYT Nov. 2, 1997
^ See Andrew Kaufman, Cardozo (Cambridge: Harvard University Press, 2000) at 89.
^ a b "'Cardozo was first, but was he Hispanic?,' USA Today, May 27, 2009". Retrieved 2009-06-02.
^ "Mark Sherman, 'First Hispanic Justice? Some Say It Was Cardozo,' Associated Press May 26, 2009". Retrieved 2009-06-02.
^ "Robert Schlesinger, Would Sotomayor be the First Hispanic Supreme Court Justice or Was it Cardozo? US News & World Report May 29, 2009".
^ a b "Neil A. Lewis, 'Was a Hispanic Justice on the Court in the ’30s?,' New York Times, May 26, 2009".
^ 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.
^ "Understanding Federal and State Courts: Case Study"]. United States government. Retrieved 2008-10-21.
^ * * * Benjamin N. Cardozo Lodge at www.cardozospeaks.org
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.
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.  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.