Benjamin N. Cardozo

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Benjamin N. Cardozo
Benjamin Cardozo.jpg
Associate Justice of the United States Supreme Court
In office
March 2, 1932[1] – July 9, 1938
Nominated by Herbert Hoover
Preceded by Oliver Wendell Holmes, Jr.
Succeeded by Felix Frankfurter
Chief Judge of the New York Court of Appeals
In office
January 1, 1927 – March 7, 1932
Preceded by Frank H. Hiscock
Succeeded by Cuthbert W. Pound
Associate Judge of the New York Court of Appeals
In office
February 1914 – December 31, 1926
Personal details
Born Benjamin Nathan Cardozo
(1870-05-24)May 24, 1870
New York City, New York
Died July 9, 1938(1938-07-09) (aged 68)
Port Chester, New York
Alma mater Columbia University

Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American jurist who served on the New York Court of Appeals and later as an Associate Justice of the Supreme Court. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his philosophy and vivid prose style. Cardozo served on the Supreme Court six years, from 1932 until his death in 1938. Many of his landmark decisions were delivered during his eighteen-year tenure on the New York Court of Appeals, the highest court of that state.

Life and career[edit]

Cardozo was born in 1870 in New York City, the son of Rebecca Washington (née Nathan) and Albert Jacob Cardozo.[2] 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 emigrated from London, England before the American Revolution. They were descended from Jews who left the Iberian Peninsula for Holland during the Inquisition.[2] Cardozo family tradition held that their ancestors were Marranos from Portugal,[2] although Cardozo's ancestry has not been firmly traced to Portugal.[3] "Cardozo" (archaic spelling of Cardoso), "Seixas" and "Mendes" are common Portuguese surnames.[citation needed]

Benjamin Cardozo was a twin with his sister Emily. They had a total of four siblings, including an older sister and brother. One of many cousins was the poet Emma Lazarus. Benjamin was named for his uncle, Benjamin Nathan, a vice president of the New York Stock Exchange and the victim of a noted famous unsolved murder case in 1870.[4]

Albert Cardozo, Benjamin Cardozo's father, was a judge on the Supreme Court of New York (the state's general trial court) until 1868, when he was implicated in a judicial corruption scandal, sparked by the Erie Railway takeover wars. The scandal led to the creation of the Association of the Bar of the City of New York and his father's resignation from the bench. After leaving the court, he practiced law for nearly two decades more until his death in 1885.

Early years[edit]

Rebecca Cardozo died in 1879 when Benjamin and Emily were young. The twins were raised during much of their childhood by their older sister Nell, who was 11 years older. One of Benjamin's tutors was Horatio Alger.[5] At age 15, Cardozo entered Columbia University[5] where he was elected to Phi Beta Kappa,[6] 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.[7] He passed the bar in 1891 and began practicing appellate law alongside his older brother.[5] Benjamin Cardozo practiced law in New York City until 1914.[5] 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[edit]

In February 1914, Cardozo was designated to the New York Court of Appeals under the Amendment of 1899,[8] 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.[5] 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.[5]

While on the Court of Appeals, he criticized the Exclusionary rule as developed by the federal courts, and stated that: "The criminal is to go free because the constable has blundered." He noted that many states had rejected the rule, but suggested that the adoption by the federal courts would affect the practice in the sovereign states.[9][10][11][12]

United States Supreme Court[edit]

Justice Cardozo in his robes
Cardozo's Supreme Court nomination

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."[13] 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.[14] 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.[15] 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".[16] 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).[17] 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.

Death[edit]

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.[18][19] 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.

Personal life[edit]

Cardozo had a flat in this apartment building in Washington, D.C.

As an adult, Cardozo no longer practiced his faith (he identified himself as an agnostic), but remained proud of his Jewish heritage.[20]

Of the six children born to Albert and Rebecca Cardozo, only his twin sister Emily 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:

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."[22]

The question of Cardozo's ethnicity[edit]

Cardozo was the second Jew, the first being 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 controversial, given that the Spanish Crown expelled the Jews who would not convert and persecuted even some that did.[23][24][25]

In response to this controversy, Cardozo biographer Kaufman 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.”[26] It has also been asserted that Cardozo himself "confessed in 1937 that his family preserved neither the Spanish language nor Iberian cultural traditions".[27] Ancestors had lived in English-speaking countries since the 17th century.

Some Latino advocacy groups, such as the National Association of Latino Elected Officials and the Hispanic National Bar Association, consider Sonia Sotomayor to be the first Hispanic justice.[23][26]

Cases[edit]

New York Courts
US Supreme Court

In his own words[edit]

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.[28]

Schools, organizations, and buildings named after Cardozo[edit]

Bibliography[edit]

See also[edit]

Notes[edit]

  1. ^ "Federal Judicial Center: Benjamin Cardozo". 2009-12-12. Retrieved 2009-12-12. 
  2. ^ a b c Kaufman, Andrew L. (1998). Cardozo. Harvard University Press. pp. 6–9. ISBN 0-674-09645-2. 
  3. ^ Mark Sherman, 'First Hispanic justice? Some say it was Cardozo', The Associated Press, 2009.
  4. ^ Pearson, Edmund L. "The Twenty-Third Street Murder". Studies in Murder. Ohio State University Press. pp. 123–164. ISBN 081425022X. 
  5. ^ a b c d e f Christopher L. Tomlins (2005). The United States Supreme Court. Houghton Mifflin. p. 467. ISBN 978-0-618-32969-4. Retrieved 2008-10-21. 
  6. ^ Supreme Court Justices Who Are Phi Beta Kappa Members, ‘’Phi Beta Kappa website’’, accessed Oct 4, 2009
  7. ^ Levy, Beryl Harold (November 2007). "Realist Jurisprudence and Prospective Overruling". New York Review of Books LIV (17): 10, n. 31. 
  8. ^ Designation in NYT on February 3, 1914
  9. ^ People of the State of New York v. John Defore, 150 N.E. 585 (1926).
  10. ^ Stagg, Tom, Judge, United States District Court Western District of Louisiana (July 15, 1991). "Letter to the Editor". Shreveport, La.: New York Times. Retrieved January 7, 2013. 
  11. ^ Spence, Karl (2006). "Fair or Foul? Exclusionary rule hurts the innocent by protecting the guilty". Yo! Liberals! You Call This Progress? (Converse, Texas: Chattanooga Free Press/Fielding Press). ISBN 0976682605. Retrieved January 7, 2013.  ISBN 978-0976682608.
  12. ^ Polenberg, Richard. The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge, Massachusetts: Harvard University Press. pp. 203–207. ISBN 0674960521. Retrieved January 13, 2012.  ISBN 978-0674960527
  13. ^ "Cardozo is named to Supreme Court". New York Times. 1932-02-16. 
  14. ^ James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. ISBN 978-0-7432-7226-1. Retrieved 2008-10-20. 
  15. ^ (New York Times, February 25, 1932, p. 1)
  16. ^ (New York Times, March 2, 1932, p. 13)
  17. ^ (Handler, 1995)
  18. ^ Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook at the Wayback Machine (archived September 3, 2005) Supreme Court Historical Society at Internet Archive.
  19. ^ 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.
  20. ^ Benjamin Cardozo., Jewish Virtual Library,
  21. ^ Jeffrey Rosen, New York Times, Nov. 2, 1997
  22. ^ See Andrew Kaufman, Cardozo (Cambridge: Harvard University Press, 2000) at 89.
  23. ^ a b "'Cardozo was first, but was he Hispanic?,' USA Today, May 27, 2009". May 27, 2009. Retrieved 2009-06-02. 
  24. ^ "Mark Sherman, 'First Hispanic Justice? Some Say It Was Cardozo,' Associated Press May 26, 2009". Retrieved 2009-06-02. [dead link]
  25. ^ "Robert Schlesinger, Would Sotomayor be the First Hispanic Supreme Court Justice or Was it Cardozo? US News & World Report May 29, 2009". 
  26. ^ a b "Neil A. Lewis, 'Was a Hispanic Justice on the Court in the ’30s?,' New York Times, May 26, 2009". The New York Times. May 27, 2009. Retrieved April 26, 2010. 
  27. ^ 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.
  28. ^ As quoted in Nine Old Men (1936) by Drew Pearson and Robert Sharon Allen, p. 221.
  29. ^ * * * Benjamin N. Cardozo Lodge at www.cardozospeaks.org

Further reading[edit]

External links[edit]

Legal offices
Preceded by
Frank H. Hiscock
Chief Judge of the New York Court of Appeals
1927–1932
Succeeded by
Cuthbert W. Pound
Preceded by
Oliver Wendell Holmes, Jr.
Associate Justice of the Supreme Court of the United States
1932–1938
Succeeded by
Felix Frankfurter